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A NOTARIAL  MANUAL 

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OFFICERS 


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C,  E.GAUSS- 
AMERICAN  cONSiJi:. 


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1921 


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A  NOTARIAL  MANUAL 

FOR  CONSULAR 

OFFICERS 


By 

C.  E.  GAUSS 
American  Consul 


1921 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1921 


(^3 


CONTENTS. 

Chapter  I. 
General 5 

Chapter  II. 
Affidavits 17 

Chapter  III. 
Depositions 23 

Chapter  IV. 

Acknowledgments 36 

Chapter  V. 
Authentications 58 

Chapter  VI. 
Recording   documents 61 

Chapter  VII. 

Certified  copies 63 

Chapter  VIII. 
Protesting  negotiable  instruments 64 

Chapter  IX. 
Marine  protests  and  services  to  vessels  and  seamen 72 

Index 77 

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A  NOTARIAL  MANUAL  FOR  CONSULAR  OFFICERS. 


Chapter  I. 
GENERAL. 


1.  A  notary  public  is  a  public  officer  whose  function  is  to  attest  and 
certify  by  his  hand  and  official  seal  certain  classes  of  documents  in 
order  to  give  them  credit  and  authenticity  in  foreign  jurisdictions ;  to 
take  acknowledgments  of  deeds  and  other  conveyances,  and  certify 
the  same,  and  to  perform  certain  official  acts,  chiefly  in  commercial 
matters,  such  as  the  protesting  of  notes  and  bills,  the  noting  of  foreign 
drafts,  and  marine  protests  in  cases  of  loss  or  damage.^ 

2.  The  office  of  notary  public  has  long  been  known  to  the  civil  and 
common  law.  In  the  absence  of  a  statute  a  notary  public  is  unknown 
to  the  criminal  law.^ 

3.  The  principal  function  of  a  notary- public  is  the  authentication 
of  documents.  This  power  is  used  in  specified  cases  for  the  per- 
petuation of  facts  as  evidence.  Notaries  may  also  have  the  power  to 
take  affidavits,  depositions,  and  acknowledgments,  and  to  administer 
oaths.  ^ 

4.  The  powers  and  duties  of  a  notary  public  are  derived  in  a  large 
measure  from  general  usage,  public  law,  and  the  custom  of  merchants. 
To  some  degree  they  are  regulated  by  statute  in  most  of  the  States, 
but  not  usually  in  such  a  manner  as  to  restrict  the  exercise  of  the 
functions  which  otherwise  appertain  to  the  office. 

As  a  general  rule,  a  notary  public  may  take  acknowledgments  of 
deeds,  powers  of  attorney,  agreements,  leases,  releases,  assignments, 
bonds,  mortgages,  bills  and  contracts  of  sale,  and  protests,  certify 
copies,  and  may  take  all  forms  of  oaths,  affidavits,  and  depositions.* 

5.  Under  the  statutes  of  the  United  States,  as  well  as  under  the  laws 
of  most  of  the  States  of  the  United  States,  the  American  consular 
officer  becomes  ex  officio  a  notary  public  within  the  consular  district 
to  which  he  is  assigned. 

»29  Cyc,  1068. 

*Id.,  1068,  1071. 

«Id.,  1076. 

*Cons.  Regs.,  1896,  par.  483. 


6  A   NOTARIAL   MAN-UAL    rOH   CONSULAR   OFFICERS. 

AUTHORITY  U:,^D7Jl  FEDERAL  LAW. 

6.  The  notarial  authority  of  a  consular  officer  under  Federal  law  is 
found  in  section  1750,  Revised  Statutes  of  the  United  States,  which 
reads  in  part  as  follows : 

Every  secretary  of  legation  and  consular  officer  is  hereby  authorized,  when- 
ever he  is  required  or  deems  it  necessary  or  proper  so  to  do,  at  the  post,  port, 
place,  or  within  the  limits  of  his  legation,  consulate,  or  commercial  agency,  to 
administer  or  take  from  any  person  any  oath,  affirmation,  affidavit  or  deposition, 
and  to  perform  any  notarial  act  which  any  notary  public  is  required  or  author- 
ized by  law  to  do  within  the  United  States.  Every  such  oath,  affirmation,  affi- 
davit, deposition,  and  notarial  act  administered,  sworn,  affirmed,  taken,  had  or 
done,  by  or  before  any  such  officer,  when  certified  under  his  hand  and  seal  of 
office,  shall  be  as  valid  and  of  like  force  and  effect  within  the  United  States,  to 
all  intents  and  purposes,  as  if  administered,  sworn,  affirmed,  taken,  had  or 
done,  by  or  before  any  other  person  within  the  United  States  duly  authorized 
and  competent  thereto." 

7.  This  statute,  however,  confers  notarial  powers  on  diplomatic 
and  consular  officers  only  in  respect  to  matters  within  Federal  juris- 
diction. 

Section  1750  does  not  intend  to  authorize  the  consul  to  perform  notarial  acts 
in  regard  to  matters  of  State  practice  and  State  law  only  and  which  are  governed 
by  State  law;  and,  in  saying  what  shall  be  the  force  and  elTect  of  a  consul's 
notarial  act  in  London,  it  can  not  mean  its  force  in  regard  to  business  and 
subject  matter  which  belong  to  the  States  exclusively  to  regulate,  since  that 
would  be  usurpation.  The  construction  given  to  such  acts,  drawn  in  general 
language,  is  that  they  relate  to  subjects  that  are  within  the  province  of  the 
United  States  Government,  i.  e.,  to  subjects  only  that  are  within  its  jurisdic- 
tion. (U.  S.  V.  Badeau,  1886,  33  Fed.  Rep.,  572,  affirmed  1887,  31  Fed.  Rep., 
697.)' 

AUTHORITY  UNDER  STATE  LAWS. 

8.  The  laws  of  some  of  the  States  and  Territories  authorize  consular 
officers  to  take  acknowledgments  of  deeds,  to  take  depositions  and 
affidavits,  and  to  perform  other  notarial  acts  for  use  in  such  States 
and  Territories.  When  called  upon  for  any  such  service  not  within 
the  usual  functions  and  competency  of  a  notary  public,  according 
to  the  general  law  and  usage  of  commercial  nations,  the  consul  will 
be  guided  by  the  State  or  Territorial  statute  which  empowers  him  to 
act  in  the  premises.'^ 

9.  As  a  matter  of  precaution  in  cases  where  specific  authority  is 
not  found  in  a  State  or  Territorial  statute  for  the  performance  by 
a  consular  officer  of  the  particular  notarial  act  which  he  is  requested 
or  required  to  perform,  the  person  requesting  or  requiring  such  serv- 
ice should  be  informed,  preferably  in  writing,  of  the  apparent  absence 

5  See  also  sec.  7,  act  of  Apr.  5,  1906,  quoted  post. 
oFed.  Stats.  Annotated,  II,  813. 
»C.  R.,  1896,  par.  483. 


A  NOTABIAL   MANUAL  FOK   CONSULAR  OFFICERS.  7 

of  such  specific  authority,  so  that  he  may  have  due  notice  and  the 
consular  officer  be  relieved  of  responsibility  should  the  notarial  act 
subsequently  be  rejected  or  refused  recognition  under  the  State  or 
Territorial  jurisdiction. 

In  such  cases  it  is  well  to  note  in  the  record  of  fees  the  fact  that 
the  person  for  whom  the  service  was  performed  was  duly  informed 
of  the  apparent  absence  of  specific  authority  under  the  State  or 
Territorial  statutes. 

10.  While  many  of  the  States  make  no  express  provision,  for  ex- 
ample, as  to  affidavits  taken  abroad,  for  use  in  the  State  jurisdiction, 
such  affidavits  are  often  admitted  if  made  before  a  consular  officer 
under  the  "  general  usage,  public  law  and  custom  of  merchants,"  so 
that  it  would  not  seem  wise  to  refuse  a  notarial  act  because  it  is  not 
expressly  authorized  by  State  statute,  if  such  act  is  one  common  to 
the  general  usage  in  commercial  practice,  and  provided  the  person 
requiring  the  service  is  informed,  as  suggested,  of  the  absence  of  ex- 
press authority  in  the  State  statute  and  makes  his  request  or  demand 
for  the  service  with  full  knowledge  of  that  fact. 

PERFORMANCE  OF  NOTARIAL  SERVICES  OBLIGATORY. 

11.  While  the  performance  of  notarial  services  by  consular  officers 
was  for  many  years  optional,  section  7  of  the  act  of  Congress  of 
April  5, 1906,  makes  such  service  obligatory,  providing : 

That  every  consular  officer  of  the  United  States  is  hereby  required,  whenever 
application  is  made  to  him  therefor,  within  the  limits  of  his  consulate,  to 
administer  to  or  take  from  any  person  any  oath,  affirmation,  affidavit,  or 
deposition,  and  to  perform  any  other  notarial  act  which  any  notary  public  is 
required  or  authorized  to  do  within  the  United  States;  and  for  every  such 
notarial  act  performed  he  shall  charge  in  each  instance  the  appropriate  fee 
prescribed  by  the  President  under  section  seventeen  hundred  and  forty-five, 
Kevised  Statutes. 

(See  also.  Cons.  Regs.,  1896,  par.  484,  as  amended  by  Exec,  order,  Aug.  13, 
1906.) 

This  provision  of  law  apparently  applies  only  to  consular  officers 
and  not  to  secretaries  of  legation. 


12.  The  term  "consular  officer,"  as  used  in  section  1750,  Kevised 
Statutes,  was  defined  by  section  1674,  Revised  Statutes,  to  include 
consuls  general,  consuls,  commercial  agents,  deputy  consuls,  vice  con- 
suls, vice  commercial  agents,  and  consular  agents,  "  and  none  others." 

The  act  of  February  5, 1915  (sec.  6),  however,  amends  section  1674, 
Revised  Statutes,  to  define  consular  officers  as — 

Consuls  general,  consuls,  vice  consuls,  interpreters  in  consular  offices,  student 
interpreters,  consular  agents,  and  none  others. 


8  A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

LIMITS  WITHIN  WHICH  NOTARIAL  SERVICES  MAY  BE  PERFORMED. 

13.  Following  the  rule  that  a  notarial  officer  can  act  as  such  only 
within  the  political  division  for  which  he  is  appointed,^  and  in  con- 
forniity  with  the  restriction  by  section  1750,  Revised  Statutes,  and 
section  7  of  the  act  of  April  5,  1906,  confining  the  notarial  authority 
of  a  consular  officer  to  the  "  limits  of  his  consulate,"  consular  officers 
are  forbidden  ^  to  perform  notarial  services  outside  of  their  consular 
districts. 

The  term  "  within  the  limits  of  his  consulate  "  has  been  construed 
to  mean  "within  the  limits  of  his  consular  district." ^^  When  not 
otherwise  specifically  defined  by  instructions  from  the  Department 
of  State,  the  limits  of  the  consular  district  are  determined  by  para- 
graph 30,  Consular  Regulations,  1896,  as  including  "  all  places  nearer 
the  official  residence  of  a  consul  than  to  the  residence  of  any  other 
consul  within  the  same  allegiance." 

A  list  of  consular  districts  definitely  determined  is  published 
in  the  Register  of  the  Department  of  State. 

DISABLING  INTEREST. 

14.  The  general  rule  is  that  a  notary  can  not  certify  to  or  act  in 
a  manner  in  which  he  has  a  personal  interest.^^ 

There  are  of  course  occasional  exceptions  to  this  general  rule,  but 
in  the  absence  of  reliable  legal  advice  the  consular  officer  would  do 
well  to  follow  the  rule  as  absolute  and  not  act  when  he  is  in  any  way 
personally  interested. 


15.  A  notary  owes  his  clients  the  general  duty  of  integrity,  dili- 
gence, and  skill,  and  it  is  his  duty  to  inform  himself  of  the  facts  to 
which  he  intends  to  cevtitj  and  not  rely  on  hearsay.^^  He  should  also 
fairly  protect  the  interests  of  illiterate  and  ignorant  persons. 

LIABILITY  OF  NOTARY. 

16.  For  breach  of  an  official  duty,  a  notary  and  his  sureties  are 
liable  on  his  bond.^^ 

A  notary  by  assuming  to  perform  any  official  duty  on  request  of 
a  party  concerned  impliedly  undertakes  to  discharge  it  faithfully, 
and  is  liable  to  the  extent  of  any  resulting  injury  if  he  fails  to  do  so.^* 

8  29  Cyc,  1090. 

«Cir.  Instrn.,  May  29,  1903. 

"Cons.  Regs.,  1896,  par.  482. 

"29  Cyc,  1092. 

i^Id.,  1101. 

"Id.,  1195. 

"  John's  American  Notaries,  10. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  9 

The  measure  of  damages  is  the  loss  sustained  by  the  notary's 
wrongful  act  or  omission.^^ 

The  Department  of  State  has  found  it  necessary  to  caution  con- 
sular officers  on  the  subject  by  a  circular  instruction^^  saying: 

You  are  reminded  that  as  ex  officio  notaries  public  you  hold  yourselves  out 
to  the  world  as  fully  capable  of  discharging  the  duties  of  your  office  and  there- 
fore you  may  render  yourselves  liable  for  damages  resulting  from  misconduct 
or  negligence  in  the  performance  of  your  duty. 

NOTARIAL  RECORD. 

17.  A  notary's  official  record  is  a  public  record  and  a  certified  copy 
is  evidence  of  the  facts  officially  recorded.^'' 

With  this  statement  of  the  general  rule,  the  following  provisions 
of  paragraph  486,  Consular  Regulations,  1896,  will  commend  them- 
selves to  consular  officers : 

Each  consul  shall  keep  a  permanent  record  of  all  notarial  *  *  *  services 
*  *  *  and  transmit  at  the  close  of  each  quarter  one  sworn  copy  of  the  same 
to  the  Department  of  State.  *  *  *  This  record  and  transcript  should  include 
all  notarial  *  *  *  acts  for  which  a  fee  has  been  charged,  and  also  gratui- 
tous services  of  like  character,  such  as  the  authentication  of  pension  vouchers, 
bond  transfers,  etc. ;  describe  the  service  so  fully  and  clearly  that  its  nature 
may  be  ascertained  by  inspection.  Entry  of  the  services  as  "  affidavit,"  "  oath," 
"  certification,"  "  authentication,"  etc.,  is  insufficient.  Many  of  these  acts  are 
concerned  with  the  transfer  of  property  and  the  execution  of  papers  and  docu- 
ments of  importance.  Questions  are  likely  to  arise  at  any  time  which  it  is 
desirable  that  the  Department  of  State  should  have  the  means  of  answering, 
either  from  the  information  on  its  files  or  in  the  records  of  the  several  con- 
sulates. The  form  which  has  been  prepared  for  this  purpose  shows  the  par- 
ticulars which  the  record  shall  contain  and  also  the  form  of  oath  to  accom- 
pany it.  If  in  the  execution  of  papers  witnesses  are  required,  their  names 
should  be  entered  in  the  column  of  remarks. 

The  following  is  the  text  of  an  instruction  on  this  subject  which  is 
used  by  one  of  the  consuls  general  at  large  and  which  is  particularly 
commended  to  the  careful, attention  of  consular  officers : 

To  comply  with  the  requirements  of  paragraph  486  of  the  Consular  Regula- 
tions, the  Department  expects  the  records  of  notarial  services  (now  kept  in 
the  Fee  Book)  to  show  descriptions  complete  enough,  in  each  case,  to  identify 
the  document  concerned,  stating  the  parties  thereto ;  if  identification  was  neces- 
sary, the  way  in  which  this  was  established;  if  a  deed,  the  location,  in  brief 
general  terms,  of  the  land ;  if  a  patent  application,  the  nature,  in  brief  general 
language,  of  the  patent  applied  for;  if  a  pension  voucher,  the  number  of  the 
certificate  and  the  period  covered  by  the  voucher ;  if  an  affidavit,  a  statement  in 
brief  general  language  of  its  nature,  etc.  In  the  case  of  certificates  to  the 
official  character  of  notaries  public  and  other  local  officials,  the  record  should 
show  information  as  complete  as  though  the  oath  had  been  administered  or 

15  29  Cyc,  1104. 

"Circular  Instruction,  Mar.  13,  1908. 

"  29  Cyc,  1100. 


10  A  NOTARIAL   MANUAL  FOR  CONSULAR  OFFICERS. 

the  acknowledgment  taken  by  the  consular  officer,  whenever  such  information  is 
available  at  the  time  when  the  service  is  rendered.  The  sample  entries  which 
accompanied  General  Instruction  Circular  No.  367  are  called  to  your  attention. 

SIGNATURE  AND  OFFICIAL  SEAL. 

18.  Under  the  law  merchant  and  law  of  nations,  notaries  must 
attest  their  official  certificate  and  other  writing  by  their  seal  of  office. 
And  this  is  the  almost  universal  rule  under  the  statutes  of  the  several 
States.  An  official  seal  is  an  impression  on  the  paper  directly,  or 
on  wax  or  wafer  attached  thereto,  made  by  the  official  as  and  for  his 
seal.^* 

The  prudent  notarial  officer  will  always  seal  whatever  he  officially 
signs.  Section  1750,  Eevised  Statutes,  which  confers  notarial  author- 
ity on  consular  officers  under  Federal  law,  provides  that  the  notarial 
act  of  such  officer  shall  be  valid  "  when  certified  under  his  hand  and 
seal  of  office." 

Where  the  officer  is  required  by  statute  to  authenticate  his  certificate 
with  his  official  seal,  a  failure  to  affix  such  seal  will  render  the 
acknowledgment,  or  other  notarial  act,  fatally  defective.^^ 

19.  The  official  seal  of  an  American  consular  officer  for  notarial 
purposes,  as  well  as  for  all  consular  acts,  is  the  impression  press  seal 
furnished  by  the  Department  of  State.  The  seal  furnished  to  con- 
sular officers  for  use  on  wax  is  not  to  be  used  in  place  of  the  impres- 
sion press  seal  for  notarial  purposes. 

It  is  desirable  that  the  official  seal  be  impressed  on  the  certificate 
in  such  a  position  that  it  marks  the  close  of  the  certificate  on  the 
lower  left-hand  side,  while  the  signature  and  official  title  mark  it 
on  the  right-hand  side. 

20.  The  signature  of  the  consular  officer  should  always  be  affixed 
to  the  notarial,  certificate  issued  by  him.  A  certificate  not  so  sub- 
scribed is  of  no  force.^° 

A  substantial  compliance  with  the  statute  is  all  that  is  required  of 
the  certificate,  and  it  will  not  be  invalidated  by  such  a  discrepancy 
as  the  use  by  the  officer  of  the  initials  of  his  Christian  name  instead 
of  writing  such  name  in  full.^^  It  is  considered  the  better  practice, 
however,  to  write  out  the  Christian  name  in  full. 

OFFICIAL  TITLE  FOR  NOTARIAL  ACTS. 

21.  The  signature  should  be  followed  by  the  official  title  of  the 
consular  officer.  This  is  considered  the  best  practice  even  where  the 
official  character  of  the  officer  is  shown  in  the  body  of  the  certificate, 
and  it  is  the  practice  uniformly  followed  by  consular  officers. 

18  Giaque's  Manual,  8. 
i»l  eye,  578. 
20  1  Cyc,  577. 
^M.,  578. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  11 

When  acting  in  a  notarial  capacity,  consular  officers  are  advised,  in 
view  of  the  requirements  of  the  laws  of  several  States  on  the  subject, 
to  sign  as  officers  "  of  the  United  States  of  America."  ^- 

This  practice  should  be  followed  uniformly  by  the  consular  officer, 
whether  performing  notarial  services  under  a  Federal,  State,  or  Ter- 
ritorial statute,  except  in  those  cases  where  on  forms  already  pre- 
pared and  printed  by  the  Department  of  State  the  title  reads  other- 
wise. 

FORGERY  or  SIGNATURE  AND  SEAL  OF  CONSULAR  OFFICER. 

22.  Section  1750,  Revised  Statutes  provides,  in  respect  to  the  signa- 
ture and  seal  of  an  American  consular  officer  in  his  notarial  capacity, 
^hat — 

If  any  person  shall  forge  any  such  seal  or  signature  or  shall  tender  in 
evidence  any  such  document  with  a  false  or  counterfeit  seal  or  signature  thereto, 
knowing  the  same  to  be  false  or  counterfeit,  he  shall  be  deemed  and  taken  to 
be  guilty  of  a  misdemeanor,  and  on  conviction  shall  be  imprisoned  not  ex- 
ceeding three  years  nor  less  than  one  year,  and  fined  in  a  sum  not  to  exceed 
three  thopsand  dollars,  and  may  be  charged,  proceeded  against,  tried,  con- 
victed, and  dealt  with  therefor  in  the  district  where  he  may  be  arrested  or 
in  custody. 

FALSE  SWEARING,  ETC. 

23.  Section  1750,  Revised  Statutes,  also  provides  in  part  that — 

If  any  person  shall  willfully  and  corruptly  commit  perjury,  or  by  any  means 
procure  any  person  to  commit  perjury  in  any  such  oath,  affirmation,  affidavit, 
or  deposition,  within  the  intent  and  meaning  of  any  act  of  Congress  now  or 
hereafter  made,  such  offender  may  be  charged,  proceeded  against,  tried,  con- 
victed, and  dealt  with  in  any  district  of  the  United  States  in  the  same  manner, 
in  all  respects,  as  if  such  offense  had  been  committed  in  the  United  States, 
before  any  officer  duly  authorized  therein  to  administer  or  take  such  oath, 
affirmation,  affidavit  or  deposition,  and  shall  be  subject  to  the  same  punishment 
and  disability  therefor  as  are  or  shall  be  prescribed  by  any  such  act  for  such 
offense. 

24.  Congress  has  power  to  punish  offenses  committed  abroad  by 
American  citizens  (U.  S.  v.  Craig,  1886,  28  Fed.  Rep.)  and  has  exer- 
cised it  in  the  foregoing  legislation. 

FEE   STAMPS   NECESSARY  TO  VALIDITY   OF   DOCUMENT. 

25.  Section  10,  act  of  April  5,  1906,  provides  in  part : 

Whenever  a  consular  officer  is  required  or  finds  it  necessary  to  perform  any 
consular  or  notarial  act,  he  shall  prepare  and  deliver  to  the  party  or  parties  at 
whose  instance  such  act  is  performed  a  suitable  and  appropriate  document  as 
prescribed  by  the  consular  regulations  and  affix  thereto  and  duly  cancel  an  ad- 
hesive stamp  or  stamps  of  the  denomnafon  or  denominations  equivalent  to  the 
fee  prescribed  for  such  consular  or  notarial  act,  and  no  such  act  shall  be  legally 

22Cir.  Instrcn,  Dept.  of  State,  Nov.  28,  1904. 


12  A   NOTARIAL   MANUAL   FOR   CONSULAR   OFFICERS. 

valid  within  the  jurisdiction  of  the  Government  of  the  United  States  unless 
such  stamp  or  stamps  is  or  are  affixed  and  canceled. 

26.  Where  the  tariff  of  consular  fees  provides  that  no  fee  shall  be 
charged  for  certain  specified  notarial  services,  the  consular  officer 
should  stamp  or  write  on  the  document  in  the  space  where  the  fee 
stamp  would  otherwise  appear,  the  words  "  No  fee  prescribed."  ^^ 

27.  The  consular  fee  stamp  is  to  be  affixed  close  to  the  consular 
signature,  or,  if  this  is  impracticable,  at  the  upper  left-hand  corner  of 
the  document,  and  canceled  by  writing  thereon  the  date  and  the  ini- 
tials of  the  officer  or  by  impressing  the  consular  seal.^* 

FEES  FOR  NOTARIAL  SERVICES. 

28.  The  fees  for  notarial  services  as  prescribed  by  the  President 
under  authority  of  section  1745,  Kevised  Statutes,  are  included  in  the- 
tariff  of  consular  fees  as  published  from  time  to  time  by  the  Depart- 
ment of  State. 

The  following  tariff  is  now  in  force : 

Item  31.  Administering  an  oath  and  certificate  thereof $2.  00' 

Item  32.  Administering  cath  and  preparing  passport  application 1,  00' 

Item  33.  Acknowledgment  of  a  deed  or  power  of  attorney,  or  similar 
service,   including  one  or  more   signatures,   wuth   certificate 

thereof,  for  each  copy ^ 2,00' 

Item  34.  Administering  any  and  all  oaths  required  to  be  made  by  pen- 
sioners and  their  witnesses  in  the  execution  of  their  pension 
vouchers,  or  by  persons  presenting  claims  for  pensions  or  in- 
crease of  pensions  and  their  witnesses,  or  certifying  to  the 
competency  of  a  local  official  before  whom  the  same  were 
executed No  fee- 
Item  35.  Aclinowledgments     connected     with     the     transfer     of    United 

States  bonds No  fee. 

Item  36.  Administering  oaths  to  or  taking  acknowledgments  of  oflftcials 
or  employees  of  the  United  States  Government,  in  connec- 
tion with  their  official  business  or  accounts. No  fee.. 

Item  37.  For  rendering  notarial  services  to  oflficials  of  foreign  Govern- 
ments who  render  gratuitously  reciprocal  courtesies  to  Ameri- 
can diplomatic  and  consular  officers No  fee. 

Item  38.  Certifying  to  official  character  of  a  foreign  notary  or  other 

official 2.  OC 

Item  39.  For  taking  depositions,  executing  commissions  or  letters  roga- 
tory, where  the  record  of  testimony,  including  caption  and 

certificate,  does  not  exceed  500  words 10.00' 

For  each  additional  100  words  or  fraction  thereof .  50- 

The  foregoing  fee  shall  cover  the  administration  of  the  oath  and  all 
services  of  the  consul  as  commissioner,  but  shall  not  include  services  of 
clerk,  stenographer,  or  typewriter,  which  shall  be  additional  at  the  rate 
prescribed  herein  for  copying. 

23Dept.  of  State  Circular,  Aug.  27,  1906. 
2<Id.,  June  1.  1900. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  13 

Item  40.  Copies  (carbon  copies  to  be  charged  for  at  the  same  rate  as 
originals)  : 

For  the  first  100  words  or  fraction $0.  50 

For  every  additional  100  words  or  less .  25 

Item  41.  Translations ;  for  every  100  words  or  less 1.  00 

Item  42.  Additional  fee  for  all  services  contemplated  by  fees  numbered 
31,  32,  33,  38,  39,  when  rendered  elsewhere  than  at  the  con- 
sular offices  at  the  request  of  the  interested  parties,  for  each 
hour  or  fraction  thereof 1.  00 

In  connection  with  any  service  rendered  outside  of  the  consular  ofl^ce 
at  the  request  of  private  individuals,  the  exact  amount  of  the  expenses 
actually  and  necessarily  incurred  by  the  person  rendering  the  service 
shall  be  collected  from  the  persons  for  whom  the  service  is  performed  in 
addition  to  the  fee  or-fees  prescribed  therefor;  and  a  note  of  the  amount 
shall  be  made  on  the  margin  of  the  fee  book  and  fee  return  opposite  the 
entry  of  the  service  and  fee ;  but  no  amount  in  excess  of  the  fee  or  fees 
prescribed  and  such  actual  and  necessary  expenses  shall  be  charged  or 
accepted. 

Item  43.  Recording  unofficial  documents  in  consulate  upon  request: 

For  the  first  100  words  or  fraction .  50 

For  every  additional  100  words  or  less .  25 

Item  44.  Any  and  all  services  indicated  in  the  above  tariff  and  per- 
formed upon  written  orders  of  the  Department  of  State  for 

♦       the  official  use  of  the  Government  of  the  United  States No  fee. 

Item  45.  Any  and  all  services  in  connection  with  the  execution  of  in- 
come-tax returns No  fee 

,  All  consular  charges  must  be  in  strict  accordance  with  the  tariff 
nnd  be  collected  in  gold  or  its  equivalent. 

No  fee  or  compensation  will  be  collected  for  any  service  not 
covered  by  the  tariff. 

The  following  suggestions  may  serve  to  make  the  tariff  of  fees 
for  notarial  purposes  entirely  clear  to  officers  who  may  be  in  doubt 
on  particular  points : 

Item  31 :  Where  an  oath  and  certificate  thereof  is  requested  in  more  than  one 
copy,  the  fee  is  collected  for  every  copy. 

Item  33 :  The  clause  "  or  similar  service  "  is  variously  interpreted  by  con- 
sular offices.  A  reasonable  interpretation  would  seem  to  be  to  charge  the  fee 
for  all  notarial  certificates  issued  by  the  consular  officer  not  otherwise  specified 
in  the  tariff  of  consular  fees. 

Item  39:  Where  the  stenographer  is  an  employee  of  the  consular  office,  or 
is  a  consular  officer,  his  or  her  fees,  at  the  rate  prescribed  for  copying,  are 
to  be  remitted  to  the  Treasury  and  are  not  to  be  retained  as  personal  com- 
pensation. 

There  is  nothing  to  prevent  the  parties  from  providing  their  own  stenog- 
rapher, provided  he  is  capable  and  is  duly  sworn. 

.Where  the  office  supplies  the  stenographer  or  clerk,  the  following  fees  are 
applicable  in  executing  a  commission : 

Commission   fee Item  No.  39 

Shorthand   copy   fee Item  No.  40 

Transcribing    fee Item  No.  40 


14  A   NOTARIAL   MANUAL   FOR   CONSULAR   OFFICERS. 

Item  42.  In  respect  to  services  outside  the  consular  office,  the  following  opin- 
ion of  the  Solicitor  of  the  Department  of  State  is  of  interest: 

It  is  not  believed  that  the  law  requiring  consular  officers  to  perform  notarial  acts 
contemplates  that  the  consul  shall  perform  such  services  at  a  distance  from  the  con- 
sulate, if  it  is  practicable  for  the  parties  to  appear  before  him  at  the  consulate.  The 
consulate  is  the  usual  and  appropriate  place  for  the  performance  of  such  services  and  the 
cases  in  which  the  consul  might  be  required  to  go  to  the  parties  rather  than  requiring- 
the  parties  to  come  to  him  are  exceptional  and  such,  for  instance,  as  attending  a  man  at 
his  deathbed.25 

He  is  not  obliged  to  abandon  his  public  duties  and  go  about  the  country  obtaining 
*     *     *     evldence.»5 

PAYMENT   OF  FEES. 

29.  Consular  officers  must  require  all  fees  to  be  paid  in  advance 
and  before  the  stamps  are  canceled,  except  in  case  of  attendance 
out  of  office  or  of  commissions,  when  the  amount  can  not  be  deter- 
mined until  the  service  is  performed.  Advance  deposits  to  cover 
fees  in  such  latter  cases  may  be  accepted,  but  in  no  other  cases.^^ 

NUMBERING  NOTARIAL  ACTS. 

30.  The  consular  officer  is  required  by  paragraph  604,  Consular 
Regulations,  1896,  to  number  all  consular  services,  in  the  order  of 
their  dates,  beginning  with  number  1  at  the  commencement  of  the 
period  of  his  service  and  on  the  1st  day  of  January  in  every  year 
thereafter.  He  is  also  required  to  number  each  consular  act  with 
the  number  appearing  in  his  record  or  register. 

Notarial  services  are  numbered  by  the  consular  officer  under  the 
series  of  miscellaneous  fees,  and  each  notarial  act,  whether  one  for 
which  a  fee  has  been  received  or  one  which  has,  under  the  tariff  of 
fees,  been  performed  without  the  collection  of  a  fee,  should  bear,  near 
the  fee  stamp,  the  words  "  Miscellaneous  Fee  No.,"  giving  the  serial 
number. 

31.  The  consular  acts  of  a  subordinate  officer,  other  than  a  con- 
sular agent  or  a  vice  consul  detailed  for  duty  at  a  place  other  than 
the  seat  of  the  consulate  general  or  consulate,  are  included  in  the 
regular  number  series  of  the  office  to  which  he  is  attached. 

32.  Receipts  for  consular  services  may  be  issued,  and  should  bear 
the  fee  number  corresponding  to  the  service  as  noted  in  the  fee 
record.  The  affixing  and  canceling  of  a  fee  stamp  itself  constitutes 
the  giving  of  a  receipt,  but  there  is  no  objection  to  the  issuance  of 
separate  receipts  where  desired. 

NOTARIAL  SERVICES  FOR  OTHERS  THAN  AMERICANS. 

33.  It  will  be  found  that  in  many  cases  the  Federal  and  State  laws 
are  mandatory  as  to  the  officers  before  whom  documents  may  be  exe- 

26Dept.  of  State,  Ms.  papers  (Jan.  21,  1911,  to  K.  &  K.). 
*«  Moore's  Digest  of  International  Law,  vol.  5,  par.  720. 
27  Consular  Fee  Tariff. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  15 

cuted,  acknowledged,  or  sworn,  abroad,  for  use  in  the  United  States, 
and  in  consequence  persons  other  than  Americans  may  require  no- 
tarial services  of  the  American  consular  officers,  which  can  not  be 
refused,  unless  objection  is  made  by  the  foreign  Government,  in  which 
case  the  matter  resolves  itself  into  a  question  of  consular  rights  and 
privileges  which,  if  necessary,  should  be  reported  to  the  diplomatic 
representative  of  the  United  States  in  the  country  or  to  the  Depart- 
ment of  State. 

Ordinarily  no  objection  is  made  to  the  full  exercise  of  notarial 
powers  by  American  consular  officers  in  respect  to  matters  within  the 
jurisdiction  of  the  United  States. 

34.  For  treaty  provisions  on  the  subject  of  notarial  privileges  of 
consular  officers  see  Treaties,  etc..  Between  the  United  States  and 
Other  Powers,  Malloy,  and  Charles.  The  subject  of  notarial  priv- 
ileges of  American  consular  officers  appears  in  the  following  treaties 
between  the  United  States  and  other  powers : 

Austria-Hungary:  Consular  Convention,  1870,  Article  IX. 
Belgium :  Consular  Convention,  1880,  Article  X. 
Colombia:  Consular  Convention,  1850,  Article  III. 
Congo :  Treaty  with  Belgium,  1891,  Article  V,  paragraph  6. 
France:  Consular  Convention,  1853,  Article  VI. 
Germany :  Consular  Convention,  1871,  Article  IX. 
Greece:  Consular  Convention,  1902,  Article  X. 
Italy:  Consular  Convention,  1878,  Article  X. 
Netherlands :  Consular  Convention,  1878,  Article  X. 
Roumania :  Consular  Convention,  1881,  Article  X. 
Servia :  Consular  Convention,  1881,  Article  X. 
Spain :  Treaty  of  1902,  Article  XXII. 
Sweden:  Consular  Convention,  1910,  Article  X. 

NOTARIAL  SERVICES  ON  SUNDAYS  AND  HOLIDAYS. 

35.  As  a  general  rule,  notarial  acts  performed  on  Sundays  are  not 
acceptable  under  Federal  or  State  jurisdictions  in  the  United  States. 

As  to  American  national  holidays,  while  as  a  general  rule  acknowl- 
edgments and  depositions  taken  on  days  declared  by  Federal  law  or 
by  State  statute  as  Federal  or  State  holidays,  are  accepted,^^  whether 
taken  within  or  without  the  State  or  the  United  States,  unless  the  law 
enumerates  such  acts  as  not  valid  if  taken  on  holidays,  conflicting 
decisions  on  the  subject  by  State  courts  are  found. 

As  to  holidays  of  the  country  in  which  the  consular  office  is  located, 
if  the  laws  of  the  country  forbid  the  execution  of  documents  on  those 
days,  the  consular  officer  should  not  perform  notarial  services  in 
connection  with  them. 

Where  there  is  any  reasonable  doubt  on  the  question,  it  is  advisable 
to  suggest  the  postponement  of  the  service. 

28Bouvier  Law.  Die,  953. 


16  A  NOTAKIAL  MANUAL  FOE   CONSULAR  OFFICERS. 

FASTENING  PAPERS. 

.  36.  When  the  instrument  or  document  to  which  the  notarial  act 
relates  consists  of  more  than  one  sheet,  or  the  consular  certificate  is 
to  be  attached,  and  not  written  on  the  document  itself,  care  should 
be  taken  to  bring  all  the  sheets  comprising  the  document  together 
under  the  consular  seal. 

The  most  satisfactory  method  is  that  prescribed  by  the  circular 
instructions  of  May  11,  1897,  and  April  11  and  August  11,  1899,  on 
the  subject  of  patent  applications — that  is,  by  passing  a  ribbon  one  or 
more  times  through  all  the  sheets,  usually  in  the  upper  left-hand 
corner  (using  a  punch  and  metal  eyelet  to  protect  the  papers  against 
the  ribbon  tearing  out),  and  bringing  the  two  ends  of  the  ribbon 
together  under  a  paper  wafer  seal,  securely  fastened  to  the  document 
opposite  the  official  signature  at  the  foot  of  the  consular  certificate,  the 
seal  then  being  impressed  on  the  wafer  with  the  consular  press  seal. 

The  paper  wafer  should  be  firmly  affixed  to  the  document  by 
mucilage  before  the  seal  is  impressed.  (Carelessness  in  this  particular 
has  often  been  noted.) 

The  consular  certificate  should  always  be  inscribed  or  attached  at 
the  close  of  the  document,  and  not  be  attached  to  its  face. 

37.  The  practice  as  to  attaching,  pasting,  or  inscribing  the  con- 
sular certificates  on  the  document  is  governed  largely  by  the  particu- 
lar State  law  applicable.  The  subject  is  discussed  in  the  chapter  on 
"Acknowledgments." 


Chapter  II. 
AFFIDAVITS. 

38.  An  affidavit  is  a  written  declaration  under  oath  made  before 
some  person  who  has  authority  to  administer  oaths.  It  is  made 
without  notice  to  the  adverse  party. 

An  affidavit  differs  from  a  deposition  in  that  it  is  taken  ex  parte 
and  without  notice,  while  a  deposition  is  taken  on  notice  to  the 
opposite  party,  who  is  given  an  opportunity  to  cross-examine  the 
witness. 

WHO    MAY   ATTEST. 

39.  The  authority  of  the  consular  officer  to  administer  oaths  and 
take  affidavits  under  Federal  law  has  already  been  quoted,^  so 
that,  so  far  as  concerns  matters  coming  within  the  jurisdiction  of 
the  Federal  Government,  it  is  well  defined. 

He  may  be  called  upon  for  numerous  services  under  this  authority, 
as,  for  example,  the  oaths  to  passport  and  registration  applications, 
oaths  of  allegiance  and  office,  oaths  to  accounts  of  Government 
officers,  oaths  in  connection  with  American  shipping,  income-tax 
returns,  pension  vouchers,  and  claims,  etc.,  all  of  which  will  be 
dictated  by  the  particular  statutes,  regulations,  or  instructions 
applying. 

UNDER    STATE    LAW. 

40.  When  there  appears  to  be  no  statutory  authority  under  which 
an  affidavit  made  before  a  consular  officer  is  acceptable  in  a  par- 
ticular State  of  the  United  States  it  would  be  well  for  the  con- 
sular officer  so  to  inform  the  person  applying  for  the  service,  before 
it  is  performed,  following  the  procedure  suggested  in  paragraph 
9  ante. 

FORM. 

41.  For  the  most  part,  affidavits  made  before  a  consular  officer 
will  already  have  been  drawn  by  competent  attorneys  or  be  in 
established  forms,  but  as  the  consular  officer  not  infrequently,  in 
the  discharge  of  his  consular  duties  or  in  making  special  investi- 
gations under  instructions  from  the  Department  of  State,  is  under 
the  necessity  of  preparing  affidavits,  it  is  advisable  to  include  in 
this  chapter  a  few  notes  on  the  form  and  contents  of  affidavits. 

*  See  par.  6  ante. 

54733—21 1  17 


18  A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

The  formal  and  substantial  requisites  of  an  affidavit  are  matters 
depending  for  the  most  part  upon  the  purposes  for  which  such 
affidavit  is  to  be  used  and  the  statutes  under  which  it  is  drawn, 
and,  therefore,  the  statutes  governing  the  particular  affidavit  should 
always  be  consulted  where  possible.^ 

TITLE. 

42.  It  is  the  general  rule  that  an  affidavit  taken  for  use  in  a  pending 
cause  must  be  entitled  in  that  cause,  so  that  it  may  show  to  what 
proceedings  it  is  intended  to  apply,  and  support  an  assignment  of 
perjury  in  case  it  prove  to  be  false.^ 

The  strict  rule  of  the  common  law  is  that  it  must  show  the  exact 
title  of  the  cause.  The  courts  of  the  several  States  differ  as  to  the 
strictness  with  which  they  apply  this  rule. 

If  there  be  no  suit  pending  at  the  time  the  affidavit  is  taken,  it 
should  not  be  entitled.* 

Likewise,  in  affidavits  not  to  be  used  in  any  cause  in  court,  no 
title  need  be  given. 

COMPONENT  PARTS. 

43.  The  following  is  given  as  an  example  of  a  general  form  of 
affidavit,  w^hich  includes  title,  venue,  body,  signature,  jurat,  date,  and 
official  seal,  which  are  the  component  parts  of  an  affidavit : 

In  the  United  States  Court  for  China. 

[Special  proceeding  No. 
(Title. )     In  re  estate  of  John  Smith,  deceased.      JAffidavit  of  publication. 

(Venue.)     Republic  of  China, 

Province  of  Fukien, 

Port  of  Amoy, 

Consulate  of  the  United  States  of  America. 
(Body.)  Before  me,  A.  B.,  consul  of  the  United  States  of  America  in  and 

for  and  the  consular  district  of  Amoy,  China,  duly  commissioned 

and  qualified,  personally  came  C.  D.,  who,  being  duly  sworn,  deposes 
and   says   that    (state  what)  ;   and  further  deponent  saith  not. 
(Signature.)  CD. 

(Jurat.)  Subscribed  and  sworn  to  before  me  this day  of 

(Date.)  ,  A.  D.  192__. 

(Notary's  signature  and  seal.)  [seal.]  A.  B., 

Consul  of  the  United  States  of  America. 

VENUE. 

44.  The  venue  should  precede  the  body  of  the  affidavit  and  should 
never  be  omitted.    An  examination  of  the  authorities  shows  that 

2  2  Cyc,   17. 
«Id.,   18. 
*2   Cyc,  18. 


A  NOTARIAL   MANUAL  FOR  CONSULAR  OFFICERS.  19 

such  omission  has  at  times  been  decided  to  be  fatal  to  the  affidavit; 
and  it  is  observed  that  when  the  courts  have  held  otherwise,  as  is 
probably  more  frequently  the  case,  the  language  has  sought  rather 
to  excuse  the  error  of  omission  than  to  sanction  the  practice. 

The  full  and  proper  venue  in  the  consular  districts  in  China,  for 
example,  would  be: 
Republic  of  China,  Province  of  Fukien,  Port  of  Amoy,  Consulate  of  the  United 

States  of  America,  ss: 

When  acting  in  a  judicial  capacity  under  the  extraterritorial  juris- 
diction enjoyed  by  the  United  States  in  China,  the  following  form  of 
venue,  established  by  the  United  States  Court  for  China,  may  be 
employed : 
United  States  of  America,  extraterritorial  jurisdiction  in  China,  the  consular 

district  of ss: 

The  letters  "  ss,"  usually  added  after  the  venue,  are  probably  not 
absolutely  essential,  although  usual.  They  signify  "  to  wit  "  and  fix 
the  place  more  definitely  where  the  affidavit  is  made,  to  show  it  is 
within  the  jurisdiction  of  the  officer.  Unless  authorized  by  statute, 
an  officer  can  perform  no  official  act  outside  of  and  beyond  the  terri- 
torial limits  in  which  he  is  authorized  or  required  to  act. 

THE  BODY,  OR  INTRODUCTORY  STATEMENT. 

45.  The  following  example  of  a  formal  and  complete  opening  will 
be  generally  acceptable  to  meet  all  possible  requirements : 

Before  me,  A.  B.,  consul  of  the  United  States  of  America  at  Amoy,  China, 
duly  commissioned  and  qualified,  personally  appeared  C.  D.,  who,  being  duly 
sworn  according  to  law,  deposes  and  says  that — 

AFFIDAVIT  BY  AGENT,  PARTNER,  OR  CORPORATION. 

46.  Where  an  agent  or  attorney,  as  such,  makes  an  affidavit,  it 
must  expressly  state  that  the  affiant  is  such  "  agent "  or  "  attorney  " 
and  not  name  him  as  agent  by  way  of  mere  description,  without  oath 
to  the  fact  of  such  agency.  The  proper  form  would  be,  for  example : 
Agent : 

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  the  agent  of  C.  D.,  etc. 

Partnership : 

A.  B.,  being  duly  sworn,  deposes  and  says  that  he  is  a  member  of  the  firm  of 
A.  B.  and  Co.,  that,  etc. 

Corporation :  Since  a  corporation  must,  of  necessity,  act  through  its 
agents,  it  follows  that  an  affidavit  on  behalf  of  a  corporation  may  be 
made  by  an  agent  or  officer  authorized  by  the  general  provisions  of 
law  to  make  oaths  in  behalf  of  the  corporation.  The  following  is  an 
example : 

A,  B.  C,  being  duly  sworn,  deposes  and  says  that  he  is  the  general  manager 
of  the  D.  E.  F.  Company  in  north  China,  that — 


20  A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS. 


47.  The  chief  test  of  the  sufficiency  of  an  affidavit  is  whether  it  is  so 
clear  and  certain  that  an  indictment  for  perjury  may  be  sustained  on 
it  if  false.^ 

{a)  Positive  allegations. — Material  facts  within  the  personal 
knowledge  of  the  affiant  must  be  alleged  directly  and  positively,  and 
not  on  information  and  belief,  and  facts  will  not  be  inferred  where 
affiant  has  it  in  his  power  to  state  them  positively.  Sometimes,  more- 
over, a  statute  providing  for  the  making  of  an  affidavit  requires  the 
facts  to  be  positively  stated,  and  where  this  is  the  case  an  affidavit  on 
information  and  belief  can  not  be  received.  Where  the  facts  are 
positively  affirmed  it  is  not  necessary  for  affiant  to  state  the  source  of 
his  knowledge,  and  the  affidavit  will  be  presumed  to  have  been  made 
on  his  personal  knowledge  if  the  facts  are  of  such  a  character  that 
he  may  have  known  them  and  it  does  not  appear  that  he  did  not; 
but  Avhere  it  appears  that  affiant  could  have  had  no  personal  knowl- 
edge as  to  material  allegations  the  affidavit  is  defective.^ 

{h)  Infortnation  and  helief. — Oftentimes  affiant's  knowledge  of 
matters  stated  in  his  affidavit  must,  of  necessity,  rest  upon  informa- 
tion derived  from  others,  and  where  this  is  the  case  it  is  generally 
sufficient  if  he  aver  that  such  matters  are  true  to  the  best  of  his 
knowledge  and  belief.  *  *  *  Where  material  allegations  are  made 
on  information  and  belief,  the  sources  of  information  and  grounds  of 
belief  should  be  set  out  and  a  good  reason  given  why  a  positive  state- 
ment could  not  be  procured.  Thus,  if  the  conclusions  of  affiant  are 
drawn  from  the  contents  of  documents,  such  contents  should  be  set 
out  or  exhibited,  so  that  the  court  may  judge  whether  affiant's  deduc- 
tions are  Avell  founded.^ 

It  is  customary  in  some  jurisdictions  to  close  the  allegations  with 
the  words  "  and  further  deponent  saith  not." 

affiant's  signature. 

48.  The  signature  of  the  affiant  is  an  essential  and  should  not  be 
omitted.  Signature  is  expressly  required  by  the  statutes  of  some  of 
the  States  and  the  courts  have  also  held  affiant's  signature  to  be 
necessary. 

JURAT. 

49.  The  usual  form  of  jurat  is : 

Subscribed  and  sworn  to  before  me  this day  of ,  A.  D.  192 — . 

5  2  Cyc,  22. 
•Id.,  24. 
'Id.,  25. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  21 

Where  the  title  of  the  officer  and  the  fact  that  he  is  duly  commis- 
sioned and  qualified  do€s  not  appear  in  the  opening  paragraph  of 
the  affidavit,  the  following  form  is  recommended : 

Subscribed  and  sworn  to  before  me,  A.  B.,  consul  of  the  United  States  of 
America  in  and  for  the  consular  district  of  Amoy,  China,  duly  commissioned 
and  qualified,  this day  of ,  192—. 

officer's   SIGNATURE  AND   SEAL. 

50.  The  signature  of  the  officer,  with  his  official  title,  in  full,  and 
the  official  seal  of  the  consular  office  are  absolutely  essential  and  must 
not  be  omitted. 

CONSULAR  FEE    STAMPS. 

51.  Consular  fee  stamps  must  be  affixed  and  canceled,  or  if  no  fee 
is  prescribed  the  indorsement  "  No  fee  prescribed  "  must  appear. 

The  "  Miscellaneous  fee  number  "  should  also  appear. 

INTERLINEATIONS  AND  ERASURES. 

52.  An  affidavit  should  be  free  from  all  interlineations  and  erasures. 

THE  OATH  OR  AFFIRMATION. 

53.  The  oath  or  affirmation  administered  in  the  case  of  an  affidavit 
is  of  considerable  importance  and  interest. 

An  oath  is  an  outward  pledge  given  by  the  person  taking  it  that 
his  attestation  or  promise  is  made  under  an  immediate  sense  of  his 
responsibility  to  God.  An  affidavit  is  a  solemn  religious  asservation 
in  the  nature  of  an  oath. 

Generally,  the  word  "  oath  "  includes  "  affirmation,"  and  when  an 
oath  is  required  or  authorized  by  law,  an  affirmation  in  lieu  thereof 
may  be  taken  by  any  person  having  conscientious  scruples  against 
taking  an  oath ;  and  an  affirmation  has  the  same  force  and  effect  as 
an  oath,  the  same  penalties  applying  for  a  false  affirmation  as  for  a 
false  oath.  Oaths  are  to  be  administered  to  all  persons  according  to 
their  own  opinions  and  as  it  most  affects  their  consciences. 

There  are  various  forms  of  administering  oaths,  the  one  more 
commonly  in  use  amongst  consular  officers  and  notaries  public  being 
(the  person  taking  the  oath  or  affirmation  holding  up  his  right  hand 
while  the  officer  repeats  to  him  the  words)  : 

You  do  solemnly  swear  that  [for  example]  the  various  matters  and  things 
set  forth  in  this  paper  which  you  have  here  signed  before  me  are  true. 

In  the  case  of  an  affirmation  the  formula  usually  employed  is : 

You  do  solemnly,  sincerely,  and  truly  affirm  and  declare  that  *  *  *,  and 
this  you  do  under  the  pains,  and  i)enalties  of  perjury. 


22  A  NOTARIAL   MANUAL  FOR  CONSULAR  OmCERS. 

If  the  affiant  be  blind  or  a  marksman  the  jurat  may  be  in  substance 
as  follows: 

Subscribed  and  sworn  to  before  me  this day  of ,  A.  D.  192 — . 

The  whole  of  the  above  affidavit  having  been  first  read  over  and  explained  to 
the  said  A.  B.,  who  appeared  i)erfectly  to  understand  the  same,  he  made  his 
mark  in  my  presence.® 

« Foster's  Federal  Practice,  4th  ed.,  vol.  1,  893. 


Chapter  III. 
DEPOSITIONS.^ 

54.  A  deposition  is  the  testimony  of  a  witness  put  or  taken  down  in 
writing  under  oath  or  affirmation,  before  a  commissioner,  examiner, 
or  other  judicial  officer,  in  answer  to  interrogatories,  oral  or  written.^ 
It  must  be  in  due  form  of  law,  by  virtue  of  a  commission  or  other 
authority  of  a  competent  tribunal,  or  according  to  the  provisions  of 
some  statute  law. 

Generally,  depositions  may  be  taken  and  used  in  all  civil  actions 
cr  suits  whether  at  law  or  in  equity.  In  criminal  cases  in  the  United 
States,  depositions  can  not  be  used  except  tliit  in  some  jurisdictions 
statutes  have  been  enacted  which  permit  a  defendant  in  a  criminal 
case  to  have  a  deposition  taken  in  his  own  behalf.  The  State  might 
also  in  some  cases  take  depositions  for  use  in  the  prosecution,  with 
the  consent  of  the  defendant,  but  not  otherwise. 

While  provisions  will  be  found  in  the  various  State  laws  for  the 
taking  of  depositions  upon  notice  and  agreement  without  the 
formality  of  the  issuance  of  a  commission  by  the  court,  as  a  general 
rule  it  may  be  said  that  depositions  taken  before  consular  officers  are 
almost  invariably  taken  under  commissions  issued  by  a  Federal  or 
State  court,  a  military  or  naval  court-martial,  or  a  department  of 
the  Federal  Government,  such,  for  instance,  as  the  Patent  Office, 
the  Land  Office,  or  the  Pension  Bureau,  and  for  the  most  part  these 
commissions  will  be  accompanied  by  full  instructions,  which  thfi 
consular  officer  must  follow  carefully. 

In  executing  such  commissions,  the  consular  officer  acts  both  in 
his  official  consular  capacity  and  as  an  officer  of  the  court  which 
issues  the  commission.^ 

WHO    MAY    EXECUTE    COMMISSION. 

55.  A  deposition  can  not  be  taken  before  any  one  but  the  com- 
missioner named ;  hence,  where  a  commission  directed  to  a  person  by 

i  The  subject  of  depositions  is  an  extensive  branch  of  law  and  the  duty  of  the  consular 
officer  in  the  execution  of  a  deposition  can  not  be  examined  fully  in  the  space  here  given, 
but  it  is  the  aim  in  this  discussion  to  give  such  general  information  and  suggestions  on 
the  subject  as  will  prove  of  assistance  to  the  officer,  who  should,  however,  be  carefully 
guided  by  the  instructions  usually  accompanying  the  commission  or,  in  the  case  of 
depositions  for  use  under  State  jurisdictions,  by  the  provisions  of  the  State  law  as  set 
out  in  the  commission  or  found  in  the  volume.  Synopsis  of  the  Laws,  supplied  annually 
to  each  consular  office  by  the  Department  of  State. 

2  13  Cyc,  832. 

■Cons.  Regs.  1896,  par.  488. 

23 


24  A  NOTAKIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

uame  or  by  his  official  title  is  executed  by  a  person  of  different  name 
or  having  a  different  title,  the  deposition  can  not  be  read,  unless  it 
appears  or  is  proven  that  the  party  who  executed  the  commission 
was  the  person  intended.* 

DISQUALIFICATION    OF    COMMISSIONER. 

56.  In  general,  a  commission  can  not  be  executed  by  a  commissioner 
incompetent  to  act  or  disqualified.^ 

The  commissioner  must  stand  indifferent  between  the  parties.  If 
he  directly  or  indirectly  bear  to  either  party  such  a  relation  as  would 
authorize  a  presumption  of  bias  or  prejudice  in  favor  of  or  against 
either  party  he  is  not  competent.'* 

The  relationship  byjslood,  or,  with  some  exceptions,  the  affinity 
of.  the  commissioner  or  other  like  officer,  to  a  party  to  the  cause  op- 
erates as  a  disqualification.^ 

INSTRUCTIONS   FOR  EXECUTION. 

67.  It  is  well  to  state  that  the  statutes  which  permit  the  use  of 
depositions  and  prescribe  the  manner  in  which  they  are  to  be  taken 
are  generally  strictly  construed  and  must  be  closely  followed.  The 
officer  before  whom  they  are  taken  must  be  governed  accordingly. 

Depositions  are  usually  taken  abroad  in  reply  to  written  interroga- 
tories, but  may  be  taken  in  reply  to  oral  interrogatories  or  questions 
by  the  parties  to  the  suit  or  their  attorneys. 

CAPTION. 

58.  A  suitable  caption,  often  prescribed  in  exact  terms  under  the 
commission,  is  required.    The  following  is  an  example : 

Depositions  of  sundry  witnesses,  tal^en  before  me,  A.  B.  C,  Consul  of  the 
United  States  of  America,  at  Amoy,  Cliina,  under  and  by  virtue  of  a  commission 

issued  out  of  the Court  for  the ,  in  a  certain 

cause  pending  therein  and  at  issue  between ,  plaintifl!,  and 

,  defendant. 

D.  E.  F.,  of  (insert  place  of  residence,  and  occupation),  of  lawful  age,  being 
by  me  first  duly  sworn,  deposes  and  says — 

INTERPRETING. 

59.  If  the  witness  does  not  understand  English  or  can  not  intelli- 
gently testify  in  that  language,  an  interpreter  may  be  employed,  to 
whom  an  oath,  in  substance  as  given  below,  should  be  administered 

*  13  Cyc,  849. 
6  13  Cyc,  851. 
•Id.,  853. 


A  KOTAKIAL   MANUAL.  FOR  CONSULAR  OFFICERS.  25 

(unless  some  other  particular  form  is  prescribed  by  the  instructions 
accompanying  the  commission)  : 

You  do  solemnly  swear  that  you  know  the  English  and languages 

and  that  you  will  truly  and  impartially  interpret  the  oath  and  interrogatories  to 

be  administered  to ,  a  witness  now  to  be  examined,  out 

of  the  English  language  into  the language,  and  that  you  will  truly 

and  impartially  interpret  the  answers  of  the  said thereto,  out  of 

the language  into  the  English  language. 

If  the  officer  taking  the  deposition  undei-stands  the  witness's  lan- 
guage he  may  usually  interpret. 

When  an  interpreter  acts,  he  must  usually  sign  the  deposition  with 
the  witness  whose  testimony  he  interprets. 

When  an  interpreter  intervenes,  it  is  usual  to  say  just  preceding  the 
interpreted  deposition: 

It  appearing  that  the  witness,  E.  F.  G.,  could  not  understand  the  English 
language  (or  could  not  intelligently  testify  in  the  English  language)  and  did 
well  understand  the language — 

(a)  I  (the  officer  executing  the  commission),  who  also  well  understands  said 
language,  administered  the  oath  and  put  the  questions  to  him  in  said  lan- 
guage, or 

(b)  One  H.  I.  J.  (if  an  interpreter  is  employed)  who  also  well  understands 

said language,   was  employed   as   interpreter  and  was   sworn   as 

follows  (give  oath  as  quoted  ante),  and  said  H.  I.  J.  interpreted  accordingly. 

And  the  said  E.  F.  G.,  of  lawful  age,  being  so  duly  sworn,  deposes  and  says : 

SWEARING    THE    WITNESSES. 

60.  The  witness  must  in  all  cases  be  sworn  or  affirmed,  and  this 
should  be  done  before  he  gives  his  testimony.  A  common  form  of 
oath  to  the  witness,  if  the  instructions  do  not  specifically  prescribe  the 
form,  is : 

You  do  solemnly  swear  that  you  will  testify  the  truth,  the  whole  truths 
and  nothing  but  the  truth  in  answer  to  the  several  interrogatories  and  cross- 
interrogatories  in  the  case  now  pending  in  the Court,  in  which, 

A.  B.  is  plaintiff  and  C.  D.  is  defendant,  and  this  you  do  as  you  shall  answer 
unto  God  (or,  "  So  help  you  God,"  or  "  in  the  presence  of  the  everliving  God  "). 

In  case  of  affirmation : 

You  do  solemnly,  sincerely,  and  truly  declare  and  affirm,  under  the  pains  and 
penalties  for  perjury  that  you  will  testify  the  truth,  etc. 

As  a  general  rule  it  may  be  stated  that  when  the  law  requires 
evidence  to  be  given  on  oath,  the  intention  of  the  law  is  looked  to, 
and  the  witness  is  required  to  go  through  that  ceremony  of  his 
native  country  which  binds  him  to  speak  truly. 

There  is  no  form  of  oath  prescribed  under  Chinese  law,  and  in 
Chinese  courts  witnesses  are  never  sworn  or  affirmed,  but  may  be 
cautioned  by  the  presiding  magistrate  when  he  suspects  that  they^ 
are  testifying  falsely. 


26  A  NOTARIAL   MA]^UAL  FOR   CONSULAR  OFFICERS. 

In  the  American  extraterritorial  courts  in  China,  however,  it  is 
usuallj  the  practice  to  swear  Chinese  witnesses,  and,  for  conven- 
ience of  reference  the  following  form,  employed  in  the  United 
States  Court  for  China  and  some  of  the  consular  courts,  is  quoted 
in  Chinese,  with  an  English  translation : 

(Chinese  text  omitted.) 

[Translation.] 

What  I  say  is  true.  I  will  not  bear  false  witness.  If  I  fail  to  tell  the  truth 
I  may  deceive  man  but  I  can  not  deceive  heaven,  and  I  am  willing  that  heaven 
should  punish  me  severely. 

THE   INTERROGATORIES  AND   THEIR  REDUCTION   TO  W^RITING. 

61.  The  interrogatories,  under  commissions  to  consular  officers  are, 
as  previously  stated,  usually  written,  but  they  may  be  oral,  the 
parties  to  the  action  appearing  in  person  or  by  attorney. 

The  interrogatories  are  usually  in  3  parts:  (1)  The  direct  ex- 
amination or  examination  in  chief;  (2)  the  cross-examination;  and 
(3)  the  redirect  examination.  The  questions  under  each  part  are 
taken  in  order. 

If  the  interrogatories  are  oral,  the  opposing  party  should  not  ask 
the  witness  questions  during  either  the  examination  in  chief  or  the 
redirect  examination;  nor  can  the  other  party  ask  questions  during 
the  cross-examination. 

As  a  general  rule  only  the  officer  taking  the  deposition  or  the 
witness  himself  may  write  the  answers  to  the  questions. 

Depositions  are,  however,  often  permitted  to  be  taken  stenographi- 
cally,  under  the  direction  of  the  officer,  the  stenographer  being  sworn 
to  take  and  transcribe  them  correctly,  and  after  being  written  out 
by  hand  or  on  the  typewriter  the  answers  must  be  read  to  the  wit- 
ness for  his  approval  or  correction,  and  must  be  signed  and  sworn 
to  in  the  usual  way. 

When  the  interrogatories  are  not  written,  but  made  orally,  both 
the  questions  and  answers  should  be  read  to  the  witness  for  his  in- 
formation. 

When  taken  stenographically,  and  the  instructions  should  be  care- 
fully consulted  before  they  are  so  taken,  an  indorsement  to  the  fol- 
lowing effect  usually  appears  in  the  caption : 

The  said  interrogatories  and  the  answers  of  the  witness  thereto  (or,  where 
the  interrogatories  are  written,  "  the  answers  of  the  witness  to  the  said  in- 
terrogatories" )  were  taken  down  stenographically  by  me  (or  by  K.  L.  M.)  and 
were  then  forthwith  transcribed  by  me  (or  "by  him  under  my  direction"), 
and  the  said  transcript  being  then  read  over  correctly  to  the  said  witness  by 
me  was  then  signed  by  the  said  witness  in  my  presence,  etc. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  27 

Where  a  stenographer  or  clerk  takes  down  the  answers,  an  oath 
about  as  follows  should  be  administered  to  him : 

You  do  solemnly  swear  that  you  will  truly,  faithfully,  and  impartially  reduce 
to  writing  (or  take  and  transcribe)   the  testimony  of  E.  W.  A.,  a  witness  in 

the  case  of  A.  B.  vs.  C.  D.,  now  pending  in  the Court.     So  help  you 

God. 

Section  864,  Revised  Statutes,  provides  that  in  the  case  of  com- 
missions issuing  out  of  a  United  States  court,  meaning  Federal 
court,  of  course,  the  testimony  must  be  reduced  to  writing  by  the 
magistrate  taking  the  deposition,  or  by  the  witness  in  the  magis- 
trate's presence,  "  and  by  no  other  person." 

In  the  case  of  oral  questions,  both  questions  and  answers  must  be 
reduced  to  writing. 

In  the  case  of  written  interrogatories,  it  is  not  usual,  and  unless 
the  instructions  specifically  so  stipulate,  the  officer  should  not  write 
down  again  the  interrogator}^,  but  only  the  answer,  in  one  of  the  fol- 
lowing forms,  or  as  may  be  prescribed  in  the  instructions : 

To  the  first  interrogatory,  he  says: 

To  the  second  interrogatory,  he  says  (and  so  on)  : 

To  the  first  cross-interrogatory,  he  says: 

To  the  first  interrogatory,  deponent  saith : 

To  the  second  interrogatory,  deponent  saith   (and  so  on)  : 

To  the  first  cross-interrogatory,  deponent  saith : 

In  some  cases,  under  oral  examination,  the  witness's  testimony  may 
be  written  down  in  narrative  form,  where  this  is  prescribed  by  the 
instructions  or  permitted  under  the  law  governing,  usually  with  the 
consent  of  the  parties.  This  is  not,  however,  the  usual  procedure, 
and  it  does  not  apply  to  the  case  of  written  interrogatories  where  the 
separate  reply  to  each  interrogatory  should  be  given. 

EXPLANATIONS,  REFRESHING  MEMORY,  ETC. 

62.  The  following  suggestions  on  the  question  of  testimony  are 
here  given  in  order  that  the  consular  officer  may  have  before  him 
information  which  he  may  find  useful  in  case  of  doubt. 

Explmning  to  witness;  shaping  answer. — If  the  witness  does  not 
understand  what  the  interrogatory  means,  the  officer  should  explain 
it  to  him,  but  only  so  as  to  get  an  answer  strictly  responsive  to  the 
interrogatory. 

Refreshing  memory^  source  of  knowledge^  etc. — A  witness  may  be 
permitted  to  refresh  his  memory  by  examining  any  written  memo- 
randum, instrument,  or  entry  in  a  book,  if  made  by  the  witness  and 
if  produced,  if,  after  examining  it,  he  can  then  speak  from  his  own 
recollection,  but  the  officer  should  never  copy  down  answers  pre- 
viously written  by  the  witness  or  by  some  one  else  for  him.     The 


28  A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

witness  must  testify  orally  from  his  recollection  and  knowledge  and 
must  not  give  his  belief  or  opinion  as  evidence. 

(Note. — It  is  suggested  that  when  witness  consults  written  memo- 
randa, the  consular  officer  taking  the  deposition  should  note  that  fact 
in  the  testimony,  at  the  point  where  the  memoranda  was  consulted.) 

Changes. — The  officer  may  correct  his  own  mistakes  by  interlining 
and  erasing  during  the  examination,  but  explanations  or  corrections 
of  mistakes  made  by  witness  should  be  added  to  his  testimony  before 
he  closes  and  signs  it,  without  erasing  or  altering  what  precedes. 
After  the  witness  has  signed  and  left  the  office,  no  further  changes 
should  be  made. 

PERSONAL  PRIVILEGE. 

63.  In  an  examination  under  oral  interrogatories  there  are  certain 
classes  of  questions  which  trench  upon  the  witness's  personal  privi- 
lege and  which  he  can  not  be  compelled  to  answer.  Such  interroga- 
tories will  usually  have  been  eliminated  when  the  deposition  is  taken 
under  written  and  not  oral  interrogatories. 

A  discussion  of  this  question  of  privilege  is  outside  the  general 
purpose  and  scope  of  this  manual,  but  for  the  information  of  the 
consular  officer  the  following  paragraphs  are  quoted  largely  from 
Giauque's  Manual  for  Notaries : 

64.  Criminating  answers. — No  answer  need  be  given  which  would  have  a 
tendency  to  expose  the  witness  to  a  penal  liability,  or  to  any  kind  of  punish- 
ment, or  which  may  serve  as  a  link  in  a  chain  of  testimony  to  convict  him  of  a 
crime.  The  officer  should  inform  the  witness  of  his  rights,  without  compelling 
him  to  explain  how  he  may  be  criminated  by  his  answer,  for  such  answer  would 
itself  criminate,  and  the  rule  is  intended  fully  to  protect  him  against  this.  The 
witness,  so  informed,  may  answer  if  he  chooses,  and  must  judge  for  himself; 
and  if  he  begin  to  tell,  he  may  be  compelled  to  finish.  If  the  witness's  refusal 
to  testify  be  wilful  and  his  excuse  false,  he  is  liable  to  an  action  by  the  parties. 

This  rule  is  in  many  States  qualified  by  the  statutes,  more  or  less,  but  it  is  not 
practicable  to  give  these  statutory  provisions. 

65.  Attorneys  may  refuse  to  testify  concerning  communications  made  to  them 
by  their  clients  as  such,  and  their  advice  given  thereon,  unless  the  client  con- 
sents to  such  testimony  being  given.  But  this  does  not  protect  him  from  testi- 
fying as  to  communications  in  furtherance  of  a  criminal  purpose,  or  as  to  facts 
observed  by  him  showing  that  any  crime  has  been  committed ;  or  as  to  any  fact 
he  has  learned  otherwise  than  as  legal  adviser ;  nor  as  to  who  employed  him  in  a 
case,  nor  in  what  capacity  the  employing  person  acted ;  nor  that  he  drew  up  a 
legal  document,  and  that  it  was  duly  executed;  nor  that  deeds,  etc.,  about 
which  he  has  been  consulted,  are  in  existence,  and  their  whereabouts,  but  not 
their  contents.  No  one  against  whom  he  is  employed  when  communications  are 
made  is  a  client,  though  he  may  formerly  have  been. 

66.  Ministers,  priests,  physicians,  and  surgeons. — Confidential  communications 
made  to  these  were  not  protected  at  common  law,  but  are  now  by  statute  in 
many  of  the  States.    This  is  so  in  Kansas  and  Missouri. 

67.  Husband  and  wife  could  not  be  compelled  at  common  law  to  testify  con- 
cerning confidential  communications  between  them  during  marriage;  but  this 


A  NOTABIAL   MANUAL  FOR   CONSULAR  OFFICERS.  29 

•did  not  apply  to  facts  learned  by  means  equally  accessible  to  third  persons.  This 
rule  is  very  general  by  statute,  and  in  many  States  has  been  made  even  broader. 
For  instance,  in  Missouri,  a  wife  can  not  be  made  to  testify  to  any  admissions 
•or  conversations  of  her  husband  whether  made  to  her  or  third  parties ;  and  in 
Kansas  all  communications  between  them  are  privileged,  whether  confidential 
or  not. 

68.  Jurors  can  not,  at  common  law,  be  compelled  to  testify  as  to  what  passed 
•between  them  in  discharge  of  their  duty. 

69.  Ansicers  which  icould  needlessly  degrade  the  character  of  witnesses  need 
not  be  answered,  unless  the  question  calls  for  evidence  relevant  to  the  facts  at 
issue ;  or  unless,  on  cross-examination,  they  tend  to  test  his  accuracy,  veracity, 
•or  credibility,  or  to  shake  his  credibility  by  injuring  his  character. 

TO.  Presence  of  parties  or  counsel. — When  not  prohibited  by  statute,  the  pres- 
•ence  of  a  party  or  counsel  at  the  examination  is  not  objectionable;  and  if  he 
has  a  right  to  be  present,  it  is  error  to  exclude  him.  However,  the  mere  fact 
that  a  party  was  not  present  when  a  deposition  was  taken  is  no  reason  for 
•excluding  it,  if  he  was  duly  notified  and  might  have  attended,  and  no  prejudice 
resulted  from  his  absence.  On  the  other  hand,  in  some  jurisdictions  in  view 
of  possible  prejudice  to  the  opposite  party,  when  he  has  had  no  notice  of  the 
■examination,  or  by  statute,  the  parties,  their  attorneys,  or  agents  are  not  per- 
mitted to  be  present  at  the  taking  of  a  deposition  on  interrogatories.  In  others, 
and  in  the  absence  of  statute  or  rule  on  the  subject,  the  fact  that  the  party  of  his 
representative  was  present  will  not  require  the  rejection  of  the  deposition, 
where  it  does  not  appear  that  the  witness  was  prompted  or  influenced.'^ 

A  witness  may  consult  with  counsel  oi>enly  and  in  the  presence  of  the 
■officer,  but  not  privately  so  as  to  procure  aid  in  framing  his  answers.' 

Where  the  deposition  is  to  be  taken  on  written  interrogatories  the  examina- 
tion of  the  witness  must  be  restricted  to  them  and  can  not  be  general  unless 
the  parties  otherwise  agree.^ 

NOTING  OBJECTIONS. 

71.  In  the  case  of  oral  examinations,  the  adverse  party  or  his  at- 
torney may  object  to  a  question  as  leading  and  have  the  objection 
noted  down  by  the  officer.  In  such  case  the  question,  the  objection, 
and  the  answer  are  all  written  down. 

EXHIBITS. 

72.  If  letters,  telegrams,  or  other  papers  are  introduced  in  evidence, 
ihey  should  be  marked  to  identify  them,  as  "  Exhibit  A,"  etc.,  and 
■described  as  such  in  the  testimony,  or  marked,  signed,  and  indorsed 
as  the  instructions  require.  In  some  States  they  must  be  annexed 
to  the  deposition,  subscribed  by  the  witness,  and  indorsed  by  the 
•officer  over  his  signature,  as : 

This  exhibit,  number    (or   marked)    and  hereto  annexed,  was  pro- 

■duced  and  shown  to  (witness's  name)  and  by  him  deposed  unto  and  subscribed 
by  him  at  the  time  of  his  examination  before  (officer). 

'  13  Cyc,  921-2. 

8  Id.,  930. 

»  13  Cyc,  929. 


30  A   NOTARIAL   MANUAL   FOR   CONSULAR   OFFICERS. 

Where  the  original  is  not  surrendered  a  copy  must  be  annexed  and 
certified,  proved,  or  indorsed,  as  the  instruction  may  require. 

In  lieu  of  the  originals,  copies  or  transcripts  of  books  or  papers 
testified  or  referred  to  may  be  annexed  to  or  accompany  the  deposi- 
tion, especially  where  the  original  is  in  the  custody  of  the  law  and 
can  not  be  procured.^^ 

SIGNING. 

73.  Each  witness  must  sign  his  deposition,  just  at  the  end  thereof. 
In  a  number  of  States  the  witness  must  sign  each  page,  and  in  others 
both  the  officer  and  witness  must  sign.  In  cases  where  an  interpreter 
is  used,  he  also  must  sign. 

Where  the  witness,  from  ignorance,  sickness,  or  otherwise,  is  un- 
able to  sign  the  following  form  is  usually  followed : 

his 

WiLUAM  X  Brown. 

mark 

the  mark  being  made  by  the  witness  or  by  the  officer  while  the  witness- 
is  touching  the  pen. 

In  some  States  the  officer  must,  after  the  signature  of  each  witness, 
certify  "  Sworn  to  and  subscribed  before  me  by  the  said  W.  B.,  this 
day  of ,  192—." 

FINAL  CERTIFICATE. 

74.  There  is  usually  a  final  certificate  required,  the  contents  thereof 
being  carefully  prescribed  by  the  instructions,  and  a  form  for  which 
will  usually  be  found  in  the  Synopsis  of  the  Laws.  This  certificate  is 
sometimes  called  a  "  return." 

In  order  to  indicate  the  character  of  such  certificate  or  return,  the- 
following  form  is  given,  incorporating  the  requirements  of  several 
States,  but  the  consular  officer  is  recommended  to  follow  exactly  any 
instructions  given  in  the  commission  directed  to  him,  or  found  in  the 
Synopsis  of  the  Laws. 

I,  A.  B.  C,  Consul  of  the  United  States  of  America,  in  and  for  the  consular 
district  of  Amoy,  China,  the  commissioner  named  in  the  annexed  commission, 
do  hereby  certify  that  in  pursuance  of  said  commission,  I  examined  (names  of 

witnesses)    at  my  office  in  the  port  of  Amoy,  China,  on  the  day  of 

,  192     ,  and  that  the  said  witnesses  being  to  me  personally  known 

and  known  to  me  to  be  the  same  persons  named  and  described  in  the  interroga- 
tories and  commission  annexed,  being  by  me  first  severally  sworn  to  testify 
the  truth,  the  whole  truth,  and  nothing  but  the  truth  in  answer  to  the  inter- 
rogatories and  cross-interrogatories  in  the  cause  in  which  the  annexed  com- 
mission is  issued,  their  evidence  was  taken  down  by  me,  and  after  being  read 
over  and  corrected  by  them  respectively,  was  subscribed  by  them  respectively  in 

»<>13  Cyc,  939. 


A  NOTARIAL   MANUAL  FOR  CONSULAR  OFFICERS.  31 

my  presence;  and  I  further  certify  that  I  am  not  counsel  or  kin  to  any  of 
the  parties  to  this  cause  or  in  any  manner  interested  in  the  result  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  of  office  at  Amoy, 
China,  this day  of ,  192     . 


Consul  of  the  United  States  of 
America  acting  as  Commissioner. 

FASTENING    AND    SEALING. 

75.  The  commission,  interrogatories,  answers,  exhibits,  and  all 
other  documents  and  papers,  certificates  and  costs  bills,  should  be 
fastened  together  in  one  package,  as  directed  by  the  instructions 
attached  to  the  commission. 

When  no  instructions  are  given,  the  most  satisfactory  manner 
of  fastening  is  to  punch  three  holes  at  the  top  of  the  sheets  as 
gathered  together,  clamping  metal  e^^elets  into  these  holes  if  possible ; 
draw  silk  ribbon  through  the  three  holes,  the  two  ends  meeting  and 
passing  through  to  the  front  of  the  center  hole,  where  the  ribbon 
should  be  tied  in  a  hard  knot;  then  draw  the  ends  of  the  ribbon 
down  and  fasten  them  under  a  paper  w^afer  seal,  impressing  thereon 
the  consular  impression  seal.     For  example : 

Top  of  sheets. 


O O O 

Knot 


<(  n 

((  (( 

<(  <( 

14  « 


(Seal) 


ENVELOPING  THE  PAPERS. 


76.  After  the  papers  are  completed  and  properly  fastened,  they 
should  be  inclosed  in  a  large  manila  or  cloth-lined  envelope,  the  flap 


32  A   NOTARIAL   MANUAI.  FOR   COISTSULAR  OFFICERS. 

being  securely  fastened  with  mucilage,  and  the  package  thus  made 
being  tied  with  red  tape,  the  ends  of  which  are  brought  together 
under  wax  and  the  consular  wax  impression  seal  impressed  thereon. 

ADDRESSING  AND  INDORSING. 

The  package  so  prepared  and  sealed  mus*t  as  a  general  rule  be  ad- 
dressed to  the  clerk  of  the  court  in  which  the  case  is  pending,  or 
as  directed  in  the  commission,  the  face  of  the  envelope  being  marked 
substantially  as  follows : 

To  the  Clerk  of  the Court, 


(City.) 


(County  and  State.) 
United  States  of  America. 


In  one  corner,  in  small  type,  on  the  face  of  the  envelope,  an  indorse- 
ment similar  to  the  following  is  usually  made : 

John  Doe,  plaintiff]  No. 

vs.              [Pending  before 
R.  Roe,  defendant.  J Court. 

Depositions  of taken  on  behalf  of  the  plaintiff,  before 


There  is  also  usually  an  indorsement  on  the  back  to  the  following 
effect : 

Depositions  taken  before  me  and  sealed  up,  addressed,  and  transmitted  by  me, 

being  deposited  in  the  Chinese  post  office  at  Amoy,  China,  this  day  of 

,  1917. 

X.  Y.  Z., 
Consul  of  the  United  States  of  America  at  Amoy,  China, 

Acting  as  Commissioner. 

When  foreign  postal  regulations  prevent  such  elaborate  indorse- 
ments on  the  envelope  and  they  are  nevertheless  required  by  the 
instructions  in  the  commission,  it  is  suggested  that  these  indorse- 
ments be  made  in  full  on  an  inner  envelope,  bearing  the  address  and 
other  notations  as  indicated  in  the  foregoing,  and  duly  sealed  and 
taped,  with  the  further  indorsement  that  such  course  was  required 
in  order  to  permit  their  transmission  through  the  mails.  This  pack- 
age may  then  be  placed  in  an  outer  envelope  addressed  to  the  clerk 
of  the  court  and  bearing  the  return  card  of  the  consular  office  in  the 
corner. 

THE  ATTENDANCE  OF  W^ITNESSES. 

77.  In  many  cases  arrangement  will  already  have  been  made  with 
witnesses  to  have  them  attend  and  testify  before  the  consular  officer 
who  acts  as  commissioner. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  33 

While  in  the  United  States  provision  is  made  to  compel  the  attend- 
ance of  witnesses,  no  such  power  is  ordinarily  vested  in  the  consular 
officer. 

It  has  been  observed  that  attorneys  in  the  United  States  have  some- 
times caused  commissions  to  be  issued  which  practically  impose  upon 
the  consular  officer  the  duty  to  find  the  witnesses,  even  in  remote 
parts  of  his  district,  induce  them  to  attend  and  testify,  etc. 

On  this  point  the  following  opinion  of  the  Department  of  State 
is  of  interest: 

While  the  taking  of  depositions  is  a  duty  imposed  upon  the  consular  officers 
by  statute,  it  is  the  opinion  of  the  solicitor  of  this  Department  that  the  consular 
officer  is  not  required  to  "  find  the  witnesses,"  *'  to  induce  them  to  present  them- 
selves and  testify,"  or  "  to  make  comparison  of  church  records."  These  duties 
are  neither  notarial  duties  nor  consular  duties,  but  are  rather  duties  of  an 
attorney  or  agent  of  the  parties  in  interest,  and  their  performance  is  not  im- 
posed upon  the  consular  officer  by  law  or  regulations.  *  *  *  It  is  not  be- 
lieved that  the  law  requiring  consular  officers  to  perform  notarial  acts  con- 
templates that  the  consul  shall  perform  such  services  at  a  distance  from  the 
consulate  if  it  is  practicable  for  the  parties  to  appear  before  him  at  the  con- 
sulate. The  consulate  is  the  usual  and  appropriate  place  for  the  performance 
of  such  services,  and  the  cases  in  which  the  consul  might  be  required  to  go  to 
the  parties  rather  than  requiring  the  parties  to  come  to  him  are  exceptional 
and  such,  for  instance,  as  attending  a  man  at  his  death  bed." 

The  consular  officer  is  not  "obliged  to  abandon  his  public  duties 
and  go  about  the  country  obtaining  evidence."^^ 

It  is  believed,  however,  that  the  consular  officer  should  show  a 
reasonable  disposition  to  assist  persons  in  the  United  States  in  liti- 
gation by  extending  any  possible  courtesy  in  connection  with  these 
matters,  provided  this  involves  no  responsibility  on  his  part  or  on 
the  part  of  his  office  and  does  not  interfere  with  his  other  duties. 

For  example,  in  the  extraterritorial  countries  it  not  infrequently 
happens  that  while  persons  of  other  than  American  nationality  will 
fail  to  appear  to  give  testimony  when  notified  by  the  consular  officer, 
an  explanation  of  the  difficulty  to  his  consular  colleague  of  the 
nationality  concerned  will  result  in  means  being  found  to  require 
the  attendance  of  the  witness,  with  possible  resulting  service  to 
American  interests  concerned  who  might  otherwise  have  had  to 
resort  to  the  expensive  and  generally  unsatisfactory  procedure  of 
seeking  the  testimony  through  letters  rogatory. 

In  connection  with  the  attendance  of  American  witnesses  in  an 
extraterritorial  jurisdiction  of  the  United  States  attention  is  directed 
to  sections  868  and  869,  Revised  Statutes,  having  to  do  with  sub- 
poenas for  the  attendance  of  witnesses  before  commissioners  ap- 

"Dept  state  MSS.  files,  Jan.  21,  1911. 

13  Moore,  Int.  Law  Digest,  Chap.  XVI,  720,  footnote. 

54733—21 3 


34  A   NOTAKIAL   MANUAL.  FOE   CONSULAR  OFFICERS. 

pointed  by  "  any  court  of  the  United  States,"  wherein  it  is  provided 
that  upon  application  of  either  party  to  the  suit,  or  his  agent,  sub- 
poenas may  be  issued  by  the  "  clerk  of  any  court  of  the  United 
States  for  such  district  or  territory"  to  compel  the  attendance  of 
the  witness. 

0BJEC5TI0NS  TO   EXECUTION   OF  COMMISSIONS. 

78.  Where  the  local  government  objects  to  the  taking  of  testimony 
by  a  consular  officer,  acting  as  commissioner  for  a  court  in  the  United 
States,  the  consul  should  return  the  papers  with  an  explanation  of 
the  reasons  why  he  is  unable  to  execute  the  commission,  and  with  any 
suggestions  he  may  be  able  to  make  as  to  the  proper  method  of  ob- 
taining the  testimony — whether  by  letters  rogatory  or  otherwise.^^ 

It  should  be  observed,  however,  that  the  right  of  American  consular 
officers  to  take  depositions  abroad,  more  particularly  those  of  their 
own  nationals,  is  guaranteed  by  treaty  in  a  number  of  cases.^* 

LETTERS  ROGATORY. 

79.  These  are  letters  or  formal  communications  containing  a  re- 
quest by  a  court  in  which  an  action  is  pending  to  a  foreign  court  or 
tribunal  that  the  testimony  of  a  witness  residing  within  its  jurisdic- 
tion may  be  formally  taken  under  its  direction  and  transmitted  to 
the  court  making  the  request.  This  mode  of  obtaining  testimony  is 
usually  resorted  to  only  where  a  commission  can  not  be  executed  or 
would  be  inadequate.^* 

A  full  discussion  of  letters  rogatory  as  affecting  both  American  and 
foreign  courts  will  be  found  in  Moore's  Digest  of  International  Law, 
Vol.  II,  pages  104,  et  seq.  As  the  matter  is  one  upon  which  a  consular 
officer  may  from  time  to  time  be  consulted,  it  is  well  for  him  to  be 
familiar  with  the  subject. 

TRANSMISSION   OF  LETTERS  ROGATORY  THROUGH  CONSUL. 

80.  Section  875,  Revised  Statutes,  provides  in  part : 

When  any  commis»sion  or  letter  rogatory  issued  to  take  the  testimony  of  any 
witness  in  a  foreign  country  in  any  suit  in  which  the  United  States  are  parties 
or  have  an  interest,  is  executed  by  the  court  or  the  commissioner  to  whom  it  is 
directed,  it  shall  be  returned  by  such  court  or  commissioner  to  the  minister  or 
consul  of  the  United  States  nearest  the  place  where  it  is  executed.  On  receiv- 
ing the  same  the  said  minister  or  consul  shall  indorse  thereon  a  certificate 
stating  when  and  where  the  same  was  received  and  that  the  said  deposition  is 
in  the  same  condition  as  when  he  received  it ;  and  he  shall  thereupon  transmit 

18  Cons.  Regs.,  1896,  490. 

**  See  Cons.  Regs.,  1896,  par.  87,  and  Treaties  of  the  United  States,  etc.,  Malloy  and 
Charles. 

»»13  Cyc,  892. 


A  NOTABIAL   MANUAI^  FOR   CONSULAR  OFFICERS.  35 

the  said  letter  or  commission,  so  executed  and  certified,  by  mail,  to  tlie  clerk 
of  the  court  from  which  the  same  issued,  in  the  manner  in  which  his  official 
dispatches  are  transmitted  to  the  Government. 

FEES    FOR  DEPOSITIONS. 

81.  The  consular  officer  acts  both  in  his  official  consular  capacity 
and  as  an  officer  of  the  court  which  issues  to  him  a  commission  to 
take  testimony.  His  charges  are  official  and  must  be  in  strict  accord- 
ance with  the  tariff  of  fees  prescribed  by  the  President. 

When  it  is  necessary  to  insure  payment  of  such  fees,  the  consular 
officer  is  authorized  to  retain  the  papers  committed  to  him  in  con- 
nection with  such  service  until  the  prescribed  fees,  for  which  he  is 
responsible  to  the  Government,  have  been  paid.^^ 

A  careful  observance  of  the  foregoing  instructions  is  recom- 
mended to  consular  officers.  It  has  been  found  in  experience  that 
commissions  are  often  issued  from  courts  in  the  United  States  to 
consular  officers  for  the  taking  of  testimony  which  would  never  have 
been  requested  had  the  parties  been  fully  informed  of  the  expense 
of  their  execution. 

It  is  the  best  practice  in  all  cases  to  require  a  deposit  to  cover  the 
approximate  costs,  and  while  it  is  difficult  to  estimate  those  costs 
under  the  fees  applicable,  some  idea  can  be  formed  by  the  consular 
officer  sufficient  to  justify  him  in  naming  an  amount  for  deposit. 
Deposits  to  cover  fees  in  the  case  of  commissions  to  take  testimony 
are  authorized  in  such  cases. 

In  cases  where  an  emergency  exists  as  to  the  time  of  return  of  a 
commission  or  depositions,  and  the  consular  officer  has  received 
satisfactory  assurance  that  all  fees  and  expenses  would  be  paid,  the 
practice  has  sometimes  been  followed  of  transmitting  the  papers 
through  some  reputable  banking  institution  accompanied  by  a  draft 
on  the  persons  who  are  to  pay  the  fees.  Upon  payment  of  the  draft, 
the  bank  will  transmit  the  papers  to  the  clerk  of  court  to  whom  ad 
dressed. 

Such  arrangements,  however,  should  be  made  carefully  so  that  the 
bank  fully  understands  its  instructions  in  the  matter. 

For  the  table  of  fees  for  executing  commissions,  etc.,  see  paragraph 
23  ante. 

i«Cons.  Regs.,  1896,  par.  488. 


Chapter  IV. 
ACKNOWLEDGMENTS. 

82.  Acknowledgment  is  a  proceeding  provided  by  statute  whereby 
a  person  who  has  executed  an  instrument  may,  by  going  before  a 
competent  officer  or  court  and  declaring  it  to  be  his  act  and  deed, 
entitle  it  to  be  recorded  or  to  be  received  in  evidence  without  further 
proof  of  execution  or  both.^ 

Every  State  and  Territory  of  the  United  States  requires  that  deeds 
and  similar  instruments  relating  to  land  within  their  respective 
borders  must,  in  order  to  be  accepted  for  record  or  to  be  fully 
effective,  be  acknowledged  or  proven  in  the  manner  and  before  the 
officers  more  or  less  specifically  described  by  the  respective  State 
or  Territorial  statutes. 

Instruments  usually  acknowledged  when  executed  abroad  include 
deeds,  mortgages,  leases,  releases,  powers  of  attorneys,  contracts  for 
the  sale  of  land,  etc. 

The  system  of  acknowledgments  is  not  confined,  however,  to  instru- 
ments relating  to  land,  but  by  the  law  merchant  is  employed  in 
proving  and  authenticating  other  instruments  for  the  purpose  of 
entitling  them  to  recording  or  to  be  received  in  evidence  without 
further  proof  of  execution,  or  both. 

ACKNOWLEDGMENT   AND  ATTESTATION  DISTINGUISHED. 

83.  The- consular  officer  should  have  clearly  in  mind  the  distinction 
between  an  acknowledgment  and  an  attestation. 

An  attestation  is  the  act  of  witnessing  an  instrument  in  writing  at 
the  request  of  the  party  making  the  same  and  subscribing  it  as  a 
witness.^ 

A  document  attested  and  not  acknowledged  must  usually  be 
"  proved  "  before  being  admitted  of  record  or  accepted  in  evidence. 
Such  proof  may,  and  usually  is  by  the  testimony  of  the  witness  or 
witnesses;  in  the  absence  of  the  witness  or  witnesses  or  in  the  case 
of  their  death,  proof  can  usually  be  made  by  persons  identifying  the 
handwriting  of  the  maker  and  the  handwriting  or  signatures  of  the 
witnesses. 

On  the  other  hand,  an  acknowledgment  represents  a  personal 
appearance  of  the  maker  of  the  instrument  before  a  properly  quali- 

»1  Cyc,  512. 

»  Bouvier  Law  Dictionary. 

36 


A  NOTARIAL   MANUAL  FOR  CONSULAR  OFFICERS.  37 

fied  officer  to  whom  he  acknowledges  the  execution  of  the  instrument, 
and  the  certificate,  signature,  and  seal  of  the  officer  are  thereupon 
affixed  in  attestation  of  that  fact. 

THE  LAW  or  ACKNOWLEDGMENTS. 

84.  This  chapter  will  be  devoted  more  particularly  to  the  require- 
ments in  respect  to  instruments  relating  to  land,  inasmuch  as  these 
are  the  more  peculiarly  exacting  and  detailed. 

The  procedure  in  respect  to  other  acknowledgments  under  the  law 
merchant,  however,  is  not  substantially  different  from  that  in  the 
case  of  instruments  relating  to  land,  and  for  the  most  part  the  fol- 
lowing comment  will  be  equally  applicable. 

It  is  not  proposed  in  this  chapter  to  discuss  the  question  of  the 
necessity  for  acknowledgment,  except  to  suggest  that  in  foreign 
jurisdictions  the  system  of  acknowledgment  of  instruments  for  use 
in  the  United  States  would  seem  to  be  preferable  to  that  of  attesting. 

In  South  Carolina,  alone  of  all  the  States  of  the  Union,  it  is  be- 
lieved, does  the  statute  require  a  deed  to  be  "  proved "  and  not  ac- 
knowledged. The  proof,  however,  may  be  made  by  the  subscribing 
witness  before  a  consular  officer,  and  the  relinquishment  of  dower 
rights  by  a  married  woman  must  be  under  acknowledgment. 

While  it  is  probably  the  better  practice  for  the  person  executing 
an  instrument  abroad  to  acknowledge  it  forthwith  before  a  consular 
or  other  properly  authorized  officer,  it  should  be  pointed  out  that 
under  some  State  jurisdictions  instruments  executed  abroad,  at- 
tested, and  proved  before  consular  officers,  are  equally  acceptable, 
and  this  procedure  is  sometimes  followed  when  the  party  executing 
the  instrument  is  prevented  by  illness  or  other  cause  from  journeying 
to  the  city  where  an  American  consular  office  is  situated,  while  the 
attesting  witness  or  witnesses  find  it  convenient  so  to  do. 

The  consular  officer  should,  however,  consult  the  State  statute 
applicable  in  the  case  before  suggesting  such  procedure. 

WHO  MAY  TAKE  ACKNOWLEDGMENTS  ABROAD. 

85.  It  will  be  found  upon  examination  of  the  various  State  laws 
that  some  States  require  or  permit  an  instrument  to  be  acknowledged 
abroad  before  a  local  notary  public,  or  perhaps  a  mayor  or  other 
local  official,  but  all  of  them  accept  acknowledgments  before  an 
American  consul,  except  South  Carolina,  which,  as  previously  stated, 
requires  the  deed  to  be  "  proved ; "  in  that  case  proof  may  be  made 
before  an  American  consul. 

Sometimes  when  the  iState  law  permits  an  acknowledgment  to  be 
made  before  some  local  officer,  requirement  is  made  for  the  authenti- 
cation of  his  signature,  seal,  and  authority  by  an  American  diplo- 


38  A   NOTARIAL    MANUAL   FOR   CONSULAR   OFFICERS. 

matic  or  consular  officer.  This  question  will  be  discussed,  post, 
under  the  chapter  on  "Authentications." 

As  to  acknowledgments  before  consular  officers,  it  is  particularly 
to  be  observed  that  all  the  States  do  not  accept  acknowledgments 
from  other  consular  officers  than  a  consul,  and  for  this  reason  it  is 
important  that  a  vice  consul  or  consular  agent  called  upon  to  per- 
form a  notarial  service  in  the  nature  of  A  acknowledgment  should 
first  consult  the  State  law  applicable  and  ascertain  whether  his 
certificate  of  acknowledgment  would  be  acceptable  under  the  law 
of  the  State  in  which  the  document  is  to  be  used. 

If  the  State  law  does  not  provide  for  an  acknowledgment  before 
a  vice  consul  or  a  consular  agent,  or  other  consular  officer  of  sub- 
ordinate grade,  the  person  applying  should  be  so  informed,  and 
if  a  consul  be  not  present  at  his  post  or  available  to  the  person 
applying,  and  the  applicant  insists  that  the  acknowledgment  be 
taken,  notwithstanding,  the  subordinate  or  substitute  consular  officer 
should,  in  order  fully  to  protect  himself,  make  written  communi- 
cation to  the  persons  demanding  the  service  of  the  apparent  absence 
of  statutory  authority  and  note  in  his  official  record  of  fees  the  fact 
that  the  service  was  performed  after  the  applicant  had  been  in- 
formed that  no  specific  provision  appeared  in  the  State  law  in 
question  authorizing  the  acknowledgment  to  be  made  before  an 
officer  of  his  rank  or  grade. 

It  does  not  necessarily  follow  that  the  acknowledgment  would 
not  be  acceptable  to  the  State  in  question,  some,  but  not  all,  hold- 
ing in  actual  practice  that  the  certificate  of  a  subordinate  or  sub- 
stitute officer  will  be  sufficient.  The  consular  officer  will,  however, 
avoid  ground  for  legitimate  complaint  if  he  exercises  care  in  this 
matter  and  follows  the  course  indicated  above. 

A  DIGEST  or  STATE  LAWS. 

86.  A  brief  statement  of  the  provisions  of  the  various  State  laws 
governing  acknowledgments  of  instruments  affecting  title  to  land, 
digested  from  the  latest  authoritative  sources  available,  is  appended 
at  the  close  of  this  chapter  for  ready  reference. 

This  digest,  however,  is  not  intended  to  replace  the  volume  entitled 

Synopsis of-  the  Laws,  being  part  of  Hubbell's  Legal  Directory, 

which  for  some  years  has  been  sent  annually  to  the  consular  officers 
by  the  Department  of  State.  The  volume  indicated  contains  a 
synopsis  of  the  laws  of  the  several  States  of  the  Union,  on  various 
subjects,  as  compiled  by  reputable  law  firms  practicing  in  those 
States.  In  this  publication,  under  the  headings  of  "Deeds,"  or 
"Acknowledgments,"  will  be  found  for  each  State  a  synopsis  of  the 
requirements  of  its  laws,  and,  usually,  forms  of  certificates  used 


A  NOTARIAL   MANUAL.  FOR   CONSULAR  OFFICERS.  39 

in  the  State  practice.  In  originally  placing  this  volume  in  the  con- 
sular offices,  the  Department  of  State,  in  a  circular  instruction  dated 
December  29,  1908,  said : 

In  view  of  the  responsibility  resting  upon  you  for  the  correct  performance 
of  your  notarial  duties  and  of  the  fact  that  the  form  in  which  acknowledg- 
ments shall  be  taken  is  prescribed  by  statute  in  most  instances,  and  in  many 
cases  technical  adherence  to  the  requirements  is  of  vital  importance  to  the 
full  effectiveness  of  the  conveyance,  it  is  deemed  advisable  to  impress  upon 
you  the  importance  of  always  consulting  this  volume,  if  you  are  not  familiar 
with  the  statutes,  in  order  to  ascertain  the  requirements  of  the  statutes  of 
the  State  in  which  each  document  about  to  be  executed  will  be  used,  as  to  the 
form  of  certificate,  official  before  whom  the  acknowledgment  or  declaration  may 
be  made,  number  of  witnesses,  and  all  the  other  details  connected  with  the 
execution  or  verification  of  the  document.  The  necessity  of  consulting  this 
volume  is  especially  urged  in  cases  where  the  certificates  to  be  signed  by  you 
are  not  prepared  by  competent  or  well-informed  attorneys  or  have  been  left  for 
you  to  prepare. 

DISQUALIFICATION  BY  INTEREST. 

87.  In  general,  because  of  the  probate  force  accorded  to  certifi- 
cates of  acknowledgment,  as  well  as  the  usually  important  conse- 
quence of  the  instrument  itself,  public  policy  forbids  that  the  act 
of  taking  and  certifying  the  acknowledgment  should  be  exercised  by 
a  person  financially  or  beneficially  interested  in  the  transaction. 

This  point  should  be  borne  in  mind  by  consular  officers,  especially 
in  reference  to  acknowledgments  by  members  of  their  personal 
families. 

THE  CERTIFICATE  OF  ACKNOWLEDGMENT. 

88.  The  principal  parts  of  an  officer's  certificate  of  acknowledg- 
ment, which  will  be  discussed  in  this  chapter,  are : 

1.  The  venue  or  statement  of  locality. 

2.  The  body  of  the  certificate,  including — 

A.  Name  and  title  of  officer. 

B.  Fact  of  his  being  duly  commissioned  and  qualified. 

C.  Date  when  acknowledged. 

D.  Grantors'  names. 

E.  Fact  of  their  personal  appearance. 

F.  Acquaintance  of  officer  with,  or  identification  of,  grantors. 

G.  Explanation  of,  or  acquaintance  of,  grantor  with  the  purport  of  the 

instrument  acknowledged;  and 
H.  When  grantor  is  a  married  woman — 

I.  Necessity    for    examination    separate    and    apart    from    her 
husband. 
II.  Necessity  for  explanation  of  instrument. 

Ill,  Separate   acknowledgment  and   continued  satisfaction  there- 
with. 

3.  Officer's  testimonium. 

4.  Officer's  official  signature, 

5.  Officer's  official  seal.  • 


40  A   NOTARIAL   MANUAL   FOR   CONSULAR   OFFICERS. 

The  discussion  will  also  take  up  the  questions  of  the  necessity  for 
witnesses,  requirements  as  to  private  seals,  and  the  position  of  the 
certificate  of  acknowledgment  on  the  instrument. 

FORM   or   CERTIFICATE. 

89.  Only  a  few  of  the  States  prescribe*  a  form  of  certificate  of 
acknowledgment,  but  the  essentials  are  generally  stated. 

In  a  circular  instruction  issued  March  13,  1908,  the  Department  of 
State  sought  to  impress  upon  consular  officers  the  necessity  for  the 
greatest  accuracy  in  the  preparation  of  certificates  of  acknowledg- 
ment and  prescribed  a  form  for  general  use  and  adaptation  (Form 
No.  88),  a  copy  of  which  is  here  given.  This  form  seeks  to  cover  the 
essential  requirements  of  all  States,  but  the  consular  officer  is  cau- 
tioned to  exercise  scrupulous  care  to  satisfy  himself  that  the  cer- 
tificate used  by  him  conforms,  as  far  as  possible,  to  the  requirements 
jf  the  particular  State  where  the  document  will  be  put  into  effect  or 
recorded. 

(Form  No.   88 — Consular.) 

(Corrected  March,  1914.) 

Certificate  of  Acknowledgment  of  Execution  of  Document. 


(Country.) 
(County  or  other  political  division.) 
(Name  of  consular  office.) 


ss: 


I, ,  of  the  United  States  of 

America  at ,  duly  commissioned  and  qualified,  do  hereby 

certify  that  on  this day  of ,  before  me  personally 

(Date.) 

appeared ,  to  me  personally  known,  and  known 

to  me  to  be  the  individual described  in,  whose  name subscribed  to,  and 

who  executed  the  annexed  instrument,  and  being  informed  by  me  of  the  con- 
tents of  said  instrument duly  acknowledged  to  me  that executed 

the  same  freely  and  voluntarily  for  the  uses  and  purposes  therein  mentioned. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  official  seal  the  day  and 
year  last  above  written. 

[seal.]  , 

of  the  United  States  of  America. 

Fee  No.  33,  $2. 

NoTB. — Whererver  practicable  all  signatures  to  a  document  should  be  included  in  one 
certificate. 

THE  VENUE. 

90.  This  is  an  important  detail,  since  it  has  been  held  that  as  the 
consular  officer  is  a  local  official  it  must  be  shown  that  the  acknowl- 
edgment was  taken  within  his  territorial  jurisdiction. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  41 

A  proper  venue  would  be : 

Republic  of  China, 
Province  of  Fukien, 
Port  of  Amoy, 
Consulate  of  the  United 
States  of  America, 

INTRODUCTORY  CLAUSE. 

91.  The  form,  No.  88,  prescribed  by  the  Department  of  State^ 
carries  the  following  introductory  clause,  which  meets  all  require- 
ments : 

I,  A.  B.  C,  consul  of  the  United  States  of  America  at  Amoy,  China,  duly 
commissioned  and  qualified,  do  hereby  certify     *     *     *. 

The  clause  "  duly  commissioned  and  qualified  "  has  been  inserted 
in  the  form  particularly  to  meet  the  requirements  of  certain  States; 
its  inclusion  for  general  purposes  is  not  only  not  objectionable,  but 
it  is  distinctly  desirable  and  is  usually  employed  by  careful  officers 
in  all  notarial  certificates. 

Some  of  the  States,  in  order  to  have  it  appear  that  the  notarial 
officer  was  actually  in  office  and  functioning  at  the  time  of  his  cer- 
tification, require  that  there  shall  be  indorsed  on  the  certificate  a 
statement  in  a  form  similar  to  the  following : 

My,  commission  expires ,  192 . 

The  commission  of  a  consul  general  or  consul  expires  at  the  pleas- 
ure of  the  President;  that  of  a  subordinate  or  substitute  consular 
officer  at  the  pleasure  of  the  Secretary  of  State. 

The  inclusion  of  the  clause  "  duly  commissioned  and  qualified " 
serves  to  meet  the  requirement  in  most  of  the  States  where  the 
indorsement  concerning  date  of  expiration  of  commission  is  pre- 
scribed. 

DATE. 

92.  The  date  when  the  acknowledgment  was  made  must  always 
clearly  appear,  whatever  may  be  the  date  of  execution  of  the  instru- 
ment. There  is  no  reason  why  an  instrument  might  not  be  acknowl- 
edged even  many  years  after  the  date  of  its  execution,  or  at  dif- 
ferent times  and  places  by  various  grantors.  The  necessity  for  the 
date  of  acknowledgment  is  therefore  apparent. 


93.  Personal  appearance  of  the  party  acknowledging  execution 
is  absolutely  essential.  By  circular  No.  390  of  March  15,  1915,  the 
Department  of  State  instructed  consular  officers  as  follows: 

The  Department's  attention  has  been  called  to  the  fact  that  certain  con- 
sular officers  from  time  to  time  have  authenticated  various  documents  which 


42  A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

have  been  sent  to  them,  by  attaching  thereto  duly  signed  and  sealed  Certificates 
of  Acknowledgment  of  Execution  of  Document  (Form  No.  88,  Consular). 

A  consular  officer  who  aflSlxes  the  above-mentioned  certificate  to  a  deed, 
acknowledgment,  deposition,  etc.,  without  requiring  the  personal  attendance 
of  the  signer  or  signers,  certifies  an  incorrect  statement  of  fact,  and,  should 
the  question  be  raised,  the  document  doubtless  would  be  invalidated,  and  the 
consular  officer  and  the  service  would  be  subject  at  least  to  severe  criticism. 

Inasmuch  as  consular  officers  are  responsible  for  the  proper  performance 
of  the  duties  imposed  on  them  by  law  and  regulation,  you  are  cautioned  to 
adhere  to  the  requirements  enumerated  in  the  phraseology  of  the  above-men- 
tioned certificate,  or  one  of  a  similar  nature. 

The  officer  has  no  right  to  certify  anything  that  he  does  not 
know.  Certifying  when  the  party  has  not  appeared  before  him  or 
when  he  has  not  read  the  instrument  is  a  misfeasance  and  renders 
him  liable.* 

NAMES  OF  PARTIES. 

94.  The  name  or  names  of  the  person  or  persons  making  the 
acknowledgment  before  the  consular  officer  at  the  one  and  same 
time  should  appear  in  the  certificate  of  acknowledgment  in  the 
same  form  as  they  are  set  out  in  the  document  itself,  which  should 
also  be  the  form  of  their  signatures  on  the  instrument. 

IDENTITY   OF   PARTIES. 

95.  "  To  me  personally  known,  and  known  to  me  to  be  the  individuals 
described  in,  whose  names  are  subscribed  to,  and  who  executed  the 
annexed  instrument "  reads  the  form  prescribed  by  the  Department 
of  State.  A  careful  reading  of  this  clause  will  impress  upon  the 
consular  officer  the  necessity  for  proper  identification  of  the  parties 
before  he  makes  any  certificate  of  fact. 

It  is  a  primary  essential  that  "  as  the  certificate  states  that  the  per- 
son or  persons  executing  the  document  is  or  are  personally  known  to 
the  officer  signing  the  certificate,  there  should  be  absolute  certainty 
as  to  identity.  This  can  undoubtedly  be  accomplished  either  by  in- 
troduction by  a  mutual  friend  or  by  the  production  of  some  evi- 
dence." ^ 

It  will  be  found  upon  examination  of  the  State  laws  that  legal 
proof  of  identity  is  usually  sworn  evidence.  It  is  not  usually  enough 
for  the  officer  to  certify  that  he  is  "  satisfied  "  as  to  identity. 

The  State  laws  frequently  require  that  when  the  signers  are  not 
personally  known  to  the  officer,  the  fact  that  they  have  been  made 
known,  and  how  so  made  known,  should  appear  in  the  certificate,  in 
a  form  about  as  follows: 

*  John's  Manual,  76. 

8  Circular,  Dept.  of  State,  Mar.  13,  1908. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  43 

Proved  to  me  on  the  oath  of and ,  to  be  the  individual 

described  in,  etc., 

or 

satisfactorily  proved  to  me  on  the  oath  of and ,  competent 

and  credible  witnesses  for  that  purpose  by  me  duly  sworn,  to  be  the  individual 
described  in,  etc. 

In  New  Mexico  and  Tennessee,  and  perhaps  in  other  States,  at  least 
two  identifying  witnesses  are  required,  and  in  at  least  one  authority 
consulted  it  was  held  that  none  of  the  other  parties  to  the  instru- 
ment was  competent  as  an  identifying  witness,  although  this  rule  is 
probably  not  general  in  its  application. 

EXPLANATION  OF  DOCUMENT. 

96.  The  prescribed  form  reads:  "And  being  informed  by  me  of 
the  contents  of  said  instrument."  This  clause  was  included  by  the 
Department  of  State  for  the  reason  that  frequently  signers  of  docu- 
ments at  consular  offices  have  a  limited  knowledge  of  the  language 
in  which  the  document  is  written  and  the  legal  or  moral  obligation 
of  explaining  the  nature  of  the  document  rests  upon  the  consular 
officer. 

It  is  the  duty  of  the  officer  to  ascertain  that  the  grantor  under- 
stands the  nature  of  the  instrument  he  is  executing,  and  where  the 
grantor  is  ignorant  or  illiterate  the  officer  must  read  or  make  known 
its  contents  to  him,  or  use  other  means  to  enable  him  to  compre- 
hend the  character  and  effect  of  the  act.^ 

In  the  case  of  married  women,  the  statutes  in  reference  to  ac- 
knowledgments usually  provide,  where  an  examination  separate  and 
apart  from  the  husband  is  required,  that  the  instrument  shall  be  ex- 
plained to  her  by  the  officer  who  takes  the  acknowledgment,  and 
usually  it  is  required  that  the  certificate  of  acknowledgment  must 
recite  the  fact  that  such  explanation  was  made. 

ACKNOWLEDGMENT   OF    EXECUTION. 

97.  "Duly  acknowledged  to  me  that  he  (or  'they')  executed  the 
same  freely  and  voluntarily  for  the  uses  and  purposes  therein  men- 
tioned." This  statement  is  included  in  the  prescribed  form  in  order 
to  meet  the  requirements  in  a  number  of  States. 

MARRIED  WOMEN. 

98.  In  many  of  the  States,  married  women  can  not  convey  their 
own  lands,  nor  any  interest  in  their  husbands'  lands,  such  as  dower, 

«1  Cyc,  563. 


44  A  NOTAKIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

or  any  interest  in  the  homestead,  without  husband  and  wife  joining 
in  the  deed,  and  frequently  it  is  required  that  the  married  woman 
must  be  examined  privately — that  is,  separately  and  apart  from  her 
husband  (out  of  his  sight  and  hearing) — when  the  instrument  must 
be  explained  to  her,  she  must  acknowledge  her  voluntary  execution 
thereof  and  indicate  her  continued  satisfaction  therewith. 

The  requirements  of  the  State  law  should  in  each  case  be  carefully 
ascertained  from  the  Synopsis  of  the  Laws. 

Where  separate  examination  is  had  of  the  wife,  the  certificate  of 
acknowledgment  must  show  the  fact  in  specific  terms.  Where  a  form 
is  not  given  in  the  Synopsis  of  the  Laws,  the  following  may  be 
adopted,  including,  as  it  does,  the  requirements  of  the  various  States : 

And  ,  known  to  me   (or,  "proven  to  me  to  be,  on  the  oath  of 

")    to   be  the   wife   of  the  within   named  ,   upon  being 


privately  examined  separate  and  apart  from  her  husband  and  the  contents  and 
effect  of  the  instrument  being  explained  to  her,  did  acknowledge  that  she 
executed  the  same  freely  and  voluntarily  for  the  purposes,  uses,  and  considera- 
tion therein  mentioned,  without  compulsion,  constraint,  threats,  apprehension, 
or  fear  of  or  from  her  husband,  and  that  she  still  voluntarily  assents  thereto 
and  is  satisfied  therewith. 

The  State  laws  vary  considerably  on  the  necessity  for  wife  and 
husband  to  be  joined  in  a  deed  or  instrument  affecting  land,  and  as 
to  separate  examination,  the  provision  sometimes  varying  in  respect 
to  rights  of  dower,  curtesy,  homestead  property,  and  community 
property. 

In  many  States  married  women  can  convey  freely  without  their 
husbands  joining  in  the  deeds. 

The  following  explanations  of  dower,  curtesy,  homestead,  and 
community  property  are  included  for  ready  reference : 

Doiver  by  common  law  is  the  widow's  right  to  have  during  her  life,  a  third 
part  of  all  the  lands  and  tenements  her  husband  owned  absolutely  at  any  time 
while  she  was  his  wife.  This  right,  or  its  substitute,  exists  in  many  of  the 
States,  while  in  others  it  has  been  abolished.  It  is  for  the  purpose  of  convey- 
ing or  barring  this  right,  or  the  right  of  homestead  or  both,  that  in  many  of  the 
States  the  wife  is  required  to  join  her  husband  in  conveyances  of  his  land. 

Curtesy,  by  common  law,  is  the  widower's  right  to  have  during  his  life  all 
of  the  lands  and  tenements  his  wife  owned  absolutely  at  any  time  while  he 
was  her  husband,  provided  that  they  had  lawful  issue  born  alive  which  might 
have  been  capable  of  inheriting  the  estate.  The  right,  modified  more  or  less, 
exists  in  many  of  the  States,  and  for  the  purpose  of  conveying  or  barring  this 
or  similar  rights  the  husband  must  often  be  joined  in  conveyances  of  his 
wife's  land,  where  this  right  exists  in  any  form.  In  some  States  the  right  of 
curtesy  has  been  abolished  or  materially  modified. 

Homestead. — The  home  place — the  place  where  the  home  is.  It  is  the  house — 
the  house  and  adjoining  land — where  the  head  of  the  family  dwells.  In  some 
States  restraints  are  placed  upon  the  alienation  by  the  owner  of  this  property, 
as,  for  instance,  the  necessity  for  the  wife  consenting  to  such  alienation  by 
joining  in  the  deed. 


A  NOTAKIAL   MANUAL  FOR   CONSULAR  OFFICERS.  45 

Community  property. — The  civil  law,  which  had  its  origin  in  the  Roman  Em- 
pire, was  transmitted  to  France  and  Spain,  whence  it  came  into  those  parts  of 
the  United  States  colonized  by  the  French  and  Spanish  where  civil  law 
rather  than  the  common  law  has  been  the  basis  of  legislation.  In  these  sec- 
tions dower  and  curtesy  do  not  exist  unless  established  by  statute,  and  we 
there  find  in  the  law,  and  shaping  its  policy,  the  idea  of  "  community,"  consist- 
ing of  husband  and  wife.  Its  principal  provisions  may  be  stated  as  follows: 
Husband  and  wife  by  their  marriage  form  a  community  or  partnership,  each  re- 
taining as  his  or  her  separate  property  that  which  he  or  she  owned  before  mar- 
riage, but  the  profits  of  this  property  and  all  acquisitions  by  either  or  both 
during  marriage,  by  donation,  purchase,  or  as  the  product  of  the  reciprocal 
industry  of  both,  belongs  to  the  community  or  partnership.  It  will  be  found 
that  in  States  where  this  system  prevails  there  are  provisions  of  law  concern- 
ing the  necessity  for  the  wife  participating  in  any  alienation  by  joining  in  the 
deed,  etc. 

The  consular  officer  is  recommended  to  examine  the  Synopsis  of 
the  Laws  under  such  headings  as  Deeds,  Dower,  Curtesy,  Homestead, 
Married  Women,  Community  Property,  etc. 

EXECUTION  BY  ATTORNEY. 

99.  In  the  absence  of  statutory  authority  a  married  woman  can  not 
authorize  an  attorney  to  make  for  her  the  acknowledgment  required 
by  statute ;  she  must  acknowledge  in  person."^ 


100.  The  testimonium  clause  used  in  Form  No.  88,  which  is  ac- 
ceptable for  all  purposes,  is : 

In  witness  whereof  I  have  hereunto  set  my  hand  and  official  seal  the  day 
and  year  last  above  written. 

It  is  the  be^t  practice  to  commence  this  testimonium  clause  with 
such  a  left-hand  margin  as  to  permit  the  seal  to  mark  the  close  of 
the  certificate  on  the  left-hand  side,  and  the  testimonium  clause, 
signature,  and  official  title  on  the  right. 

The  consular  officer  must,  of  course,  always  affix  his  signature  to 
the  certificate,  but  never  by  rubber  stamp. 

The  consular  impression  seal  is  impressed  to  the  left  of  the  testi- 
monium clause. 

The  official  title  should  follow  the  official  signature,  and  should 
be  in  full :  "  Consul  of  the  United  States  of  America,"  and  not 
"American  Consul,"  "United  States  Consul,"  or  "Consul  of  the 
United  States." 

WITNESSES. 

101.  The  laws  of  the  several  States  differ  as  to  the  requirement  for 
attesting  witnesses  to  the  execution  of  deeds  and  other  documents 

»1  Cya,  542. 


46  A  NOTABIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

when  acknowledged,  and  whenever  the  consular  officer  is  unable  to 
ascertain  the  statutory  requirements  he  is  recommended  to  have  one 
or  more  competent  witnesses  of  mature  age.^  ^ 

PERSONAL  SEALS. 

102.  The  necessity  for  each  person  whose  -signature  is  attached  to 
the  instrument  to  affix  a  private  seal  after  his  or  her  signature  varies 
in  the  different  States;  while  many  have  abolished  all  distinction 
between  sealed  and  unsealed  instruments,  in  some  it  is  necessary 
that  there  should  be  a  scroll  seal,  and  in  a  few  others  a  paper  or 
wafer  seal  is  absolutely  necessary.^ 

When  a  scroll  seal  is  sufficient,  it  is  usually  made  by  writing  the 
words  "  Seal "  or  the  letters  "  L.  S."  in  a  parenthesis  or  scroll, 
scrawl,  or  pen  flourish. 

Where  the  State  requirement  on  the  subject  is  not  clear,  many 
consular  officers,  as  a  matter  of  precaution,  require  the  signers  of  the 
document  to  affix  small  paper  or  wafer  seals  after  their  signatures. 

It  is  further  suggested  that  where  the  word  "  seal "  is  printed  after 
the  place  for  signature  of  the  person  executing  the  instrument,  that 
person  after  signing  should  draw  a  scroll  or  flourish  around  the  word, 
or  affix  a  small  paper  seal,  in  order  to  indicate  definitely  his  recog- 
nition of  the  fact  that  he  is  issuing  a  sealed  instrument  and  recog- 
nizes the  printed  word  or  letters  "  L.  S."  as  his  seal. 

POSITION  OF  CERTIFICATE  OF  ACKNOWLEDGMENT. 

103.  The  laws  of  certain  States  require  the  notarial  certificate  of 
acknowledgment  to  be  written  or  printed,  and  not  pasted,  on  the 
document;  in  other  States,  although  it  is  acceptable  to  have  the  cer- 
tificate pasted  on  or  attached  to  the  document,  it  is  required  that  it 
be  so  attached  as  to  be  inseparable  therefrom. 

In  the  absence  of  express  statutory  regulations,  the  position  of  the 
certificate  in  relation  to  the  instrument  acknowledged  is  not  gen- 
erally material,  and  it  may  be  written  on  a  separate  piece  of  paper 
and  appended  to  the  instrument,  unless  it  be  expressly  required  to  be 
written  on  the  same  sheet  with  the  instrument.^ 

The  method  adopted  for  fastening.  Form  No.  88,  when  used,  to 
the  instrument,  is  to  attach  it  at  the  end  of  all  the  sheets  of  the  docu- 
ment, in  the  upper  left-hand  corner,  by  means  of  a  punch  and  eyelet, 
and  then  to  pass  a  silk  ribbon  through  this  eyelet,  tie  it  in  front 
of  the  eyelet,  and  then  bring  the  ends  down  to  the  lower  left-hand 
corner  of  the  certificate,  where  a  wafer  seal  is  securely  pasted  over 

8  Dept.  of  state  circular,  Mar.  13,  1908. 
•1  Cyc,  fTl. 


A   NOTARIAL   MANUAL   FOR   CONSULAR   OFFICERS.  47 

the  ribbon  an  inch  or  two  from  the  ends,  and  the  seal  of  the  con- 
sulate impressed  on  this  paper  wafer. 

Some  consular  officers  have  been  more  or  less  careless  in  the  matter 
of  the  proper  place  for  the  certificate  of  acknowledgment  and  attach 
it  to  the  front,  instead  of  at  the  end,  of  the  instrument. 

The  proper  place  for  the  certificate  is  after  the  signatures  ac- 
knowledged. 

ERASURES,  CHANGES,  AND  INTERLINEATIONS. 

104.  All  erasures,  changes,  interlineations,  and  corrections  are  un- 
desirable and  should  be  avoided,  but  where  made  the  person  execut- 
ing the  instrument  and  the  officer  taking  the  acknowledgment  should 
place  their  initials  beside  such  changes,  erasures,  and  interlineations, 
and  it  will  be  found  the  best  practice  to  note  such  erasures,  changes, 
and  interlineations  in  the  consular  certificate  of  acknowledgment 
in  a  form  similar  to  the  following : 

I  certify  tliat  the  word  "  his  "  in  line  17,  page  2,  of  the  attached  instrument 
was  changed  to  **  her  "  before  acknowledgment  thereof. 

An  officer  having  taken  an  acknowledgment  of  a  deed,  and  made 
a  certificate  thereof,  can  not  afterwards  amend  or  change  his  cer- 
tificate for  the  purpose  of  correcting  a  mistake.  This  can  only  be 
done  by  the  parties  reacknowledging  the  deed.^" 

ACKNOWLEDGMENTS  BY  CORPORATIONS  AND  ATTORNEYS  IN  FACT. 

105.  Attention  is  directed  to  the  necessity  for  care  in  the  form 
of  certificate  of  acknowledgment  when  the  instrument  is  executed  by 
a  corporation,  joint-stock  association,  or  by  an  attorney  in  fact  or 
other  person  not  acting  in  his  own  behalf. 

The  following  forms  for  acknowledgments  by  corporations  and 
attorneys  in  fact  are  based  on  those  proposed  by  the  Commissioners 
on  Uniform  State  Legislation  and  the  American  Bar  Association, 
as  published  in  Jones'  Legal  Forms,  'Sixth  edition,  1909 : 

(Natural  person  acting  by  attorney.) 


On  this day  of ,  192   ,  before  me, 


Consul  of  the  United  States  of  America  at ,  duly  commissioned  and 

qualified,  personally  came to  me  well  known,  and  known 

to  me  to  be  the  person  who  executed  the  foregoing  instrument  in  behalf  of 

.  and  acknowledged  that  he  executed  the  same,  as  the 

free  act  and  deed  of ,  etc. 


i"  John's  American  Notaries,  77. 


48  A  NOTARIAL   MANUAL   FOR   CONSULAR  OFFICERS. 

(Corporation  or  Joint  Association.) 

On  this day  of ,  192__,  before  me,  A.  B.  C,  Consul  of  the 

United    States   of   America   at    ,    ,    appeared    

,  to  me  personally  known,  who  being  by  me  duly  sworn,  did  say 

that  he  is  the  president  (or  other  officer  or  agent  of)  of  the 

(here  describe  the  corporation  or  association  by  its  exact  title)  and  that  the 
seal  affixed  to  the  said  instrument  is  the  corporate  seal  of  said  corporation  (or 
association),  and  that  said  instrument  was  signed  and  sealed  in  behalf  of  said 
corporation  (or  association)  by  authority  of  its  board  of  directors  (or  trustees) 

and  said acknowledged  said  instrument  to  be  the  free  act 

and  deed  of  said  corporation  (or  association). 

It  will  be  found,  however,  that  in  the  Synopsis  of  the  Laws,  forms 
are  prescribed  by  State  statutes,  and  it  is  recommended  that  they 
should  be  followed  where  so  prescribed,  the  foregoing  forms  being 
included  in  this  manual  only  for  use  when  a  form  for  a  particular 
State  is  not  available. 

FORMS  DRAWN  BY  ATTORNEYS. 

106.  In  circular  instruction  dated  March  13,  1908,  the  Depart- 
ment of  State  instructed  consular  officers : 

Whenever  the  certificate  of  acknowledgment  to  a  document  has  been  pre- 
pared by  attorneys  for  the  signers  thereto,  consular  officers  are  advised  to 
use  such  form  of  certificate,  unless  it  he  manifestly  incorrect,  so  as  to  avoid  any 
possible  objection  or  complaint. 

This  is  the  general  rule,  but  it  has  been  the  observation  of  a 
number  of  consular  officers  that  such  documents  prepared  by 
attorneys  for  execution  abroad  are  often  carelessly  drawn,  and  in 
such  cases  the  consular  officer  should  be  careful  to  correct  defects 
of  the  venue,  the  official  title,  the  omission  of  the  clause  "  duly 
commissioned  and  qualified"  and  statements  contrary  to  exact  fact 
or  beyond  the  power  of  a  consular  officer  to  make. 

PROOF    or   DEED    BY    SUBSCRIBING   WITNESS. 

107.  As  previously  pointed  out,  in  some  States  a  deed  may  be 
proved  by  the  subscribing  witness  or  witnesses,  in  lieu  of,  or  in  the 
absence  of  an  acknowledgment  before  a  notarial  officer.  It  should 
be  mentioned,  however,  that  sometimes  this  provision  of  State  law 
applies  only  to  deeds  executed  within  the  United  States  and  not 
to  those  executed  abroad. 

When  proof  may  be  made  of  an  instrument  executed  abroad,  in 
lieu  of  acknowledgment,  the  State  law  usually  defines  the  officers 
before  whom  such  proof  may  be  made,  frequently,  but  not  as  a 
general  rule  by  any  means,  permitting  such  proof  to  be  made  before 
a  consul,  or  perhaps  a  diplomatic  or  consular  officer. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  49 

The  quite  general  rule  is  that  proof  by  a  subscribing  witness  can 
not  be  accepted  in  order  to  show  the  execution  of  a  document  by  a 
married  woman  in  those  States  where  the  married  woman  is  re- 
quired to  act  separately  and  apart  from  her  husband.  In  these  cases 
the  State  law  usually  requires  an  acknowledgment  by  the  wife,  and 
her  failure  to  act  in  the  manner  prescribed  by  statute  can  not  be 
corrected  by  the  tender  of  secondary  evidence. 

In  cases  where  the  consular  officer  is  authorj.zed  to  take  proof  of 
the  execution  of  a  deed,  or  similar  document,  he  should  be  governed 
carefully  by  the  State  law  as  set  out  in  the  Synopsis  of  the  Laws. 
Forms  for  proof  of  a  subscribing  witness  will  in  many  cases  be 
found  in  that  volume;  the  following  form  covers  most  of  the  re- 
quirements and  is  submitted  for  guidance  in  the  event  that  no  form 
is  prescribed : 

I, ,  Consul  of  the  United  States  of  America  at _, 

,  duly  commissioned  and  qualified,  do  hereby  certify  that  on  this 

day  of ,  192 ,  before  me  personally  appeared ,  to  me  per- 
sonally known  and  known  to  me  to  be  the  person  whose  name  is  subscribed 
as  a  witness  to  the  annexed  instrument  of  writing,  and  being  by  me  first  duly 

sworn,  on  his  oath  stated  that  he  saw ,  grantor  in  the 

said  deed,  subscribe  the  said  deed  on  the  date  of  its  date  (or  "that  the. said 

,  grantor  in  said  deed,  acknowledged  in  his  presence  on  the 

day  of ,  192__,  that  he  had  subscribed  and  executed  the  said  deed 

for  the  uses,  purposes,  and  consideration  therein  expressed " ) ,  and  that  he 
(and ,  the  other  subscribing  witness)  subscribed  the  same  as  attest- 
ing witness  (es)  at  the  request  of  the  said  grantor,  in  his  presence  (and  in  the 
presence  of  each  other). 

It  witness  whereof  I  have  hereunto  set  my  hand  and  official  seal  this 

day  of ,  192__. 

;j _ , 

Consul  of  the  United  States  of  America. 

DIGEST  OF  THE  PRINCIPAL  REQUIREMENTS  OF  THE  STATE  LAWS   IN  REGARD 
TO   ACKNOWLEDGMENTS. 

While  this  digest  is  intended  for  ready  reference,  and  is  believed  to 
be  accurate,  consular  officers  are  recommended  to  refer  to  the  latest 
edition  of  the  Synopsis  of  the  Laws  for  further  information. 
Alabama  : 

1.  May  be  acknowledged  before  any  diplomatic  or  consular  agent  of  the 

United  States. 

2.  Witnesses  not  necessary.  ^ 

3.  Scroll  seal  is  sufficient. 

4.  Form  of  acknowledgment  is  prescribed  by  statute. 

5.  Separate  examination  of  wife  is  required  to  alienate  homestead  prop- 

erty. 

6.  Certificate  of  acknowledgment  may  be  written,  printed,  or  pasted  on  the 

document. 

54733—21 4 


50  A   NOTjiRIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

Alaska  : 

1.  May  be  acknowledged  before  minister,  charge  d'affaires,  or  "  any  consu- 

lar officer  of  the  United  States." 

2.  No  information  as  to  witnesses.    Two  suggested. 

3.  Seal ;  no  information.    Seal  suggested. 
Arizona  : 

1.  May  be  acknowledged  before  minister,  charge  d'affaires,  consul  general, 

consul,  vice  consul,  or  consular  agent. 

2.  No  witnesses  required. 

3.  Personal  seals  not  necessary. 

4.  Separate  examination  of  married  woman  not  required. 
Arkansas  : 

1.  May  be  executed  before  consul. 

2.  Witnesses  not  required. 

3.  Private  seals  abolished. 

4.  Separate  examination  of  married  woman  required. 

5.  Certificate  may  be  pasted  on  the  instrument. 
California  : 

1.  May   be  acknowledged   before   minister,   charge   d'affaires,   consul,   vice 

consul,  or  consular  agent. 

2.  Witnesses  not  necessary. 

3.  Private  se.ils  not  necessary. 

4.  Sei^arate  ( xamination  of  married  woman  apparently  not  necessary, 

5.  Certificate  may  be  written  or  printed  and  may  be  attached  to  or  pasted 

on  the  instrument. 
Colorado : 

1.  May  be   acknowledged   before  ambassador,   minister,   charge  d'affaires, 

consul,   vice   consul,    consular   agent,    or   any   diplomatic   or   consular 
representative  of  the  United  States. 

2.  One  witness  suggested. 

3.  Private  seal  not  necessary. 

4.  Separate  examination  of  married  woman  required. 
Connecticut  : 

1.  May  be  acknowledged  before  ambassador,  minister,  charge   d'affaires, 

consul  general,  consul,  vice  consul,  or  consular  agent. 

2.  Two  witnesses  required. 

3.  The  word  (seal)  and  the  scroll  (L.  S.)  are  either  of  them  equivalent  to 

a  seal. 

4.  Separate  examination  of  married  woman  apparently  not  necessary. 

5.  Certificate  of  acknowledgment  may  be  written  on  original  instrument  or 
on  paper  securely  attached  thereto. 

Delaware  : 

1.  May  be  acknowledged  before  a  consul  general,  consul,  vice  consul,  or 

consular  agent. 

2.  One  witness  necessary. 

3.  Scroll  seal  is  sufficient. 

4.  Separate  examination  of  married  woman  is  required. 
District  of  Columbia  : 

1.  May  be  acknowledged  before  secretary  of  legation  or  consular  officer,  or 

acting  consular  officer  of  the  United  States,  as  such  consular  officer  Is 
described  in  section  1674,  Revised  Statutes  of  the  United  States. 

2.  One  witness  is  customary. 


A   NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  51 

DiSTRicrr  OF  Columbia — Continued. 

3.  Scroll  seal  may  be  used. 

4.  Form  No.  88  apparently  sufBcient. 

5.  Separate  examination  of  married  woman  apparently  not  necessary. 
Florida  : 

1.  May  be  acknowledged  before  minister,  charg§  d'affaires,  consul  general, 

consul,  or  vice  consul. 

2.  Two  witnesses  required.  • 

3.  A  scroll  or  scrawl  answers  for  a  seal. 

4.  Form  No.  88  is  apparently  sufficient. 

5.  Separate  examination  of  married  woman  is  necessary. 

6.  Certificate  of  acknowledgment  may  be  in  writing  or  printed,  or  may  be 

pasted  on  the  document. 

Ge»bgia  : 

1.  May  be  acknowledged  before  consul  or  vice  consul  although  attestation 

before  two  witnesses,   one  of  whom  is  a  consul  or  vice  consul,  is 
sufficient. 

2.  Two  witnesses  necessary. 

3.  Scrawl,  paper  or  wax  seal  is  required. 

4.  Separate  examination  of  married  woman  is  necessary. 

5.  The  certificate  of  acknowledgment  may  be  written,  printed,  or  pasted 

on  the  document. 

Hawaii  : 

1.  May  be  acknowledged  before  minister,  charge  d'affaires,  consul,  vice  con- 

sul, or  consular  agent. 

2.  Two  witnesses  suggested. 

3.  Scroll  seal  suggested. 

4.  Separate  examination  of  married  woman  apparently  not  required. 

5.  Certificate  of  acknowledgment  may  be  indorsed,  subjoined,  or  attached 

to  the  document. 

Idaho  : 

1.  May  be  acknowledged  before  a  minister,  charg6  d'affaires,  consul,  or  vice 

consul. 

2.  Separate  examination  of  married  woman  apparently  not  required. 

3.  Certificate  of  acknowledgment  may  be  written  or  printed  and  may  be 

pasted  on  the  document. 

Illinois  : 

1.  May  be  acknowledged  before  ambassador,  minister,  secretary  of  lega- 

tion, consul,  vice  consul,  or  consular  agent. 

2.  No  witness  required. 

3.  Scrawl  seal  is  sufficient. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed  or  pasted  on 

the  document. 

Indiana  : 

1.  May  be  acknowledged  before  minister,  charge  d'affaires,  or  consul. 

2.  No  witness  required. 

3.  No  seal  necessary. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  may  be  written  on  or  attached  to  the  instrument. 


52  A  NOTAKIAL.   MANUAL  FOR  CONSULAR  OFFICERS. 

Iowa: 

1.  May  be  acknowledged  before  ambassador,  minister,  secretary  of  lega- 

tion, charg4  d'affaires,  consul,  vice  consul,  consular  agent  "  or  any 
other  officer  of  the  United  States  in  a  foreign  country  who  is  author- 
ized to  issue  certificates  under  the  seal  of  the  United  States." 

2.  No  witness  required, 

3.  Private  seal  not  required. 

4. 'Separate  examination  of  married  woman  not  necessary. 
5.  Certificate  of  acknowledgment  may  be  written  or  printed,  or  pasted  on 
the  document. 
Kansas  : 

1.  May  be  acknowledged  before  a  consul. 

2.  No  witnesses  required. 

3.  Private  seal  not  required. 

4.  Separate  examination  of  married  woman  not  necessary. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed,  or  pasted  on 

the  document. 
Kentucky : 

1.  May  be  acknowledged  before  minister,  consul,  or  secretary  of  legation. 

2.  No  witnesses  required. 

3.  Individual  seals  not  required. 

4.  Separate  examination  of  married  woman  now  apparently  abolished. 

5.  Certificate  of  acknowledgment  may  be  written  on  or  attached  to  the 

document. 
Louisiana  : 

1.  May  be  acknowledged  before  an  ambassador,  minister,  charge  d'affaires, 

secretary  of  legation,  consul  general,  consul,  or  vice  consul. 

2.  Two  witnesses  required,  and  if  grantor  is  blind,  three.     Officer  taking 

acknowledgment  can  not  be  one  of  the  witnesses.  It  is  considered  the 
better  practice  for  the  witnesses  to  sign  both  the  instrument  itself 
and  the  acknowledgment. 

3.  Seal  not  required. 

4.  Certificate  of  acknowledgment  must  contain  the  following  clause   (see 

Synopsis  of  the  Laws):  "and  signed  the  said  instrument  in  my 
presence,  and  in  the  presence  of  the  two  witnesses  whose  names  are 
thereunto  subscribed  as  such,  and  acknowledged  in  the  presence  of 
said  witnesses  and  before  me  that  he  signed  the  same  as  his  voluntary 
act  and  deed,"  etc. 

5.  Separate  examination  of  married  woman  suggested. 

6.  It  is  acceptable  to  have  the  acknowledgment  pasted  on  the  document  if 

arranged   so  as  to   be  inseparable  therefrom,   but   such   practice   is 
deprecated. 
Maine: 

1.  May  be  acknowledged  before  minister  or  consul. 

2.  One  witness  required. 

3.  Seal  required.     Scroll  not  sufficient. 

4.  No  separate  examination  required  when  wife  joins  in  deed. 

5.  Certificate  of  acknowledgment  is  usually  written  or  printed  on  the  deed. 
Mabyland  : 

1.  May  be  acknowledged  before  minister,  consul  general,  consul,  vice  consul, 

or  consular  agent. 

2.  One  witness  required. 


A  NOTARIAL  MANUAL.  FOR  CONSULAR  OFFICERS.  63 

Mabyland — Continued. 

3.  Scroll  seal  is  suflScient. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  of  acknowledgment  should  be  written  or  printed,  not  pasted 

on  the  document. 
Massachusetts  : 

1.  May    be    acknowledged    before    minister,    consul,    vice   consul,    chargig 

d'affaires,  or  consular  agent. 

2.  One  witness  is  usual. 

3.  Seal  required.    Scroll  is  not  sufficient. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  of  acknowledgment  may  be  on  a  separate  sheet  annexed  to 

the  document. 
Michigan  : 

1.  May  be  acknowledged  before  minister,  minister  resident,  charge  d'af- 

faires, commissioner,  or  consul. 

2.  Two  witnesses  required. 

3.  Scroll  is  sufficient  seal. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed  and  may  be 

pasted  on  the  document. 
Minnesota  : 

1.  May  be  acknowledged  before  minister,  charg6  d'affaires,  commissioner, 

consul,  "  or  other  consular  or  diplomatic  officer  of  the  United  States." 

2.  Two  witnesses   required. 

3.  No  private  seal  required. 

4.  No  separate  examination  of  married  woman  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed,  or  pasted  on 

the  document. 
Mississippi  : 

1.  May  be  acknowledged  before  ambassador,  minister,  secretary  of  legation, 

or  consul. 

2.  No  witness  required. 

3.  No  private  seal  required. 

4.  No  separate  examination  of  married  woman  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed  and  may  be 

pasted  on  the  document. 
Missouri  : 

1.  May  be  acknowledged  before  minister  or  consul. 

2.  No  witnesses  required. 

3.  No  seal  required. 

4.  No  separate  examination  of  married  woman  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed  and  may  be 

pasted  on  the  document. 
Montana : 

1.  May  be  acknowledged  before  minister,   charge  d'affaires,  consul,  vice 

consul,  or  consular  agent. 

2.  Witness  not  necessary. 

3.  Private  seal  not  required. 

4.  No  separate  examination  of  married  woman  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed,  or  pasted  on 

the  document. 


54  A   NOTARIAL   MANUAL   FOR   CONSULAR   OFFICERS. 

Nebbaska  : 

1.  May  be  acknowledged  before  "  ministerial  oflScer,  commercial  agent,  or 

consul  of  the  United  States."  • 

2.  One  witness  required. 

3.  No  seal  required. 

4.  No  separate  examination  of  married  woman  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed,  or  pasted  on 

the  document. 
Nevada  : 

1.  May  be  acknowledged  before  a  minister  or  consul. 

2.  No  witness  required. 

3.  Scroll  seal  suflacient. 

4.  No  separate  examination  of  married  woman  required. 

5.  Certificate  of  acknowledgment  may  be  written,  printed,   or  pasted  on 

the  document. 
New  Hampshire: 

1.  May  be  acknowledged  before  minister  or  consul. 

2.  One  witness  required. 

3.  Seal  required.     Scroll  not  sufficient. 

4.  No  requirement  for  separate  examination  of  married  woman. 

5.  Certificate   of   acknowledgment   may   be   written,    printed,   typewritten 

upon  the  instrument,  or  upon  a  separate  paper  annexed  thereto. 
New  Jersey: 

1.  May   be   acknowledged   before   minister,   consul,   vice   consul,   consular 

agent,  charge  d'affaires,  or  other  representative  of  the  United  States. 

2.  One  witness  usual  but  not  necessary. 

3.  Scroll  seal  is  sufficient. 

4.  Separate  examination  of  married  women  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed  on  the  docu- 

ment, or  on  a  paper  securely  attached  thereto. 
New  Mexico  : 

1.  May  be  acknowledged  before  minister,  commissioner,  or  chargg  d'affaires, 

or  consul  general,  consul,  vice  consul,  or  consular  agent. 

2.  No  witness  required. 

3.  No  seal  necessary. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed  and  may  be 

on  separate  paper  attached  to  the  document. 
New  York: 

1.  May  be  acknowledged  before  ambassador,  minister,  minister  resident, 

charge  d'affaires,  consul  general,  consul,  vice  consul,  or  consular  agent. 

2.  No  witness  necessary. 

3.  Seal  required. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  of  acknowledgment  may  be  written,  printed,  or  pasted  on 

the  document. 
North  Carolina: 

1.  May  be  acknowledged  before  ambassador,  minister,  or  consul. 

2.  No  witness  required,  but  usual. 

3.  Scroll  seal  is  sufficient. 

4.  Separate  examination  of  married  woman  required. 

5.  Certificate  of  acknowledgment  may   apparently  be  "annexed"   to  or 

written  on  the  document. 


A  NOTARIAL   MANUAL  FOR  CONSULAR  OFFICERS.  56 

North  Dakota: 

1.  May  be  acknowledged  before  minister,  charge  d'affaires,  consul,   vice 

consul,  or  consular  agent. 

2.  No  witness  required. 

3.  No  seal  necessary. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed  and  may  be 

on  separate  paper  securely  attached  to  the  document. 
Ohio: 

1.  May  be  acknowledged  before  any  consular  officer  of  the  United  States. 

2.  Two  witnesses  required. 

3.  Private  seal  not  required. 

4.  No  separate  examination  of  married  woman  required. 

5.  The  certificate  of  acknowledgment  must  be  written  or  printed  on  the 

same  sheet  on  which  the  instrument  is  written  and  not  on  a  separate 
piece  of  i)aper  to  be  pasted  or  attached. 
Oklahoma  : 

1.  May  be  acknowledged  before  consul. 

2.  No  witnesses  necessary. 

3.  No  seal  required. 

4.  Separate  examinat  on  of  marr:ed  woman  apparently  not  required. 
Oregon  : 

1.  May     be     acknowledged    before    minister,     minister     resident,     charg§ 

d'affaires,  consul  general,  consul,  or  vice  consul. 

2.  Two  witnesses  required. 

3.  Scroll  seal  is  sufficient. 

4.  Separate  examination  of  married  woman  not  requ  red. 

5.  Cert  iicate  of  acknowledgment  may  be  pasted  on  the  document. 
Pennsylvain'Ia  : 

1.  May  be  acknowledged  before  ambassador,  minister,  consul,  vice  consul, 

or  consular  agent. 

2.  One  witness  is  usual. 

3.  Scroll  seal  is  sufficient. 

4.  Separate  examination  of  married  woman  apparently  not  required. 
Philippine  Islands  : 

1.  May  be  acknowledged  before  ambassador,  minister,  consul,  vice  consul, 
■     or  consular  agent. 
Porto  Rico  : 

1.  May  be  acknowledged  before  minister,  charge  d'affaires,  consul  general, 

consul,  vice  consul,  or  consular  agent. 

2.  Two  witnesses  required. 
Rhode  Island  : 

1.  May  be  acknowledged  before  ambassador,  minister,  chargS  d'affaires, 

consul  general,  consul,  vice  consul,  or  consular  agent. 

2.  One  witness  usual. 

3.  No  seal  required. 

4.  Separate  examination  of  wife  not  required. 

5.  It  is  considered  safer  to  write  the  certificate  of  acknowledgment  on 

the  document. 
South  Carolina  : 

1.  Deed  must  be  proved  by  the  aflSdavit  in  writing  of  a  subscribing  witness 
to  such  instrument  before  a  consul,  vice  consul,  or  consular  agent  of 
the  United  States.  Wife,  however,  relinquishes  dower  by  an  ac- 
knowledgment separate  and  apart  from  her  husband. 


56  A  NOTARIAL   MANUAL  FOR  CONSULAR   OFFICERS. 

South  Carolina — Continued. 

2.  Two  witnesses  required  to  a  deed. 

3.  Seal  desirable. 

4.  Form  of  certificate  of  a  subscribing  witness  and  of  acknowledgment  by 

married  woman  is  given  in  tbe  Synopsis  of  the  Laws. 

5.  Separate  acknowledgment  and  examination  of  wife  is  required. 
South  Dakota  : 

1.  May   be  acknowledged  before  ambassador,  minister,   charg4  d'affaires, 

consul,  vice  consul,  or  consular  agent. 

2.  Witness  not  necessary. 

3.  Seal  not  necessary. 

4.  Separate  examination  of  married  woman  not  necessary. 

5.  Certificate  of  acknowledgment  may  be  written,  printed,  or  pasted  on 

the  document. 
Tennessee  : 

1.  May  be  acknowledged  before  ambassador,  minister,  or  consul. 

2.  No  witness  required. 

3.  Private  seals  not  required. 

4.  Separate  examination  of  married  woman  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed  or  pasted  on 

the  document. 
Texas : 

1.  May  be  acknowledged  before  minister,   charge   d'affaires,   consul   gen- 

eral, consul,  vice  consul,  or  consular  agent. 

2.  No  witness  required. 

3.  No  private  seal  required. 

4.  Separate  examination  of  married  woman  required. 

5.  Statutory  forms  prescribed  for  acknowledgments. 

6.  Certificate  of  acknowledgment  may  be  written  or  printed  and  may  be 

pasted  on  document. 
Utah: 

1.  May  be  acknowledged  before  ambassador,  minister,  or  consul. 

2.  One  witness  required. 

3.  No  private  seal  required. 

4.  Separate  examination  of  married  woman  apparently  not  required. 

5.  Certificate  of  acknow^ledgment  may  be  indorsed  on  or  annexed  to  the 

document. 
Vermont  : 

1.  May  be  acknowledged  before  minister,  consul,  or  vice  consul. 

2.  Two  witnesses  required. 

3.  Seal  required. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed. 
Virginia  : 

1.  May  be  acknowledged  before  minister,  consul  general,  consul,  or  vice 

consul. 

2.  No  witnesses  required. 

3.  Scroll  seal  sufficient. 

4.  No  separate  examination  of  married  woman  required. 

5.  Certificate  of  acknowledgment  may  be  annexed  to  instrument. 
Washington  : 

1.  May   be   acknowledged  before   minister,   secretary   of  legation,   chargC* 

d'affaires,  consul  general,  consul,  or  vice  consul. 

2.  Witnesses  not  required. 


A  NOTABIAL  MANUAL  FOR   CONSULAR  OFFICERS.  67 

Washington — Continued. 

3.  Private  seal  not  required. 

4.  Separate  examination  of  married  woman  not  ordinarily  required. 

5.  Certificate  of  acl^nowledgment  may  be  written  on  or  annexed  to  the 

document. 
West  Virginia: 

1.  May  be  acknowledged  before  minister,  charg§  d'affaires,  consul  general, 

consul,  vice  consul,  or  consular  agent. 

2.  Witnesses  not  required. 

3.  Scroll  seal  sufficient. 

4.  Separate  examination  of  married  woman  not  required. 

5.  Certificate  of  acknowledgment  may  be  annexed  to  the  instrument. 
Wisconsin  : 

1.  May  be  acknowledged  before  ambassador,  minister,  charge  d'affaires,  or 

"  any  consular  officer  of  the  United  States." 

2.  Two  witnesses  required. 

3.  Scroll  seal  sufficient. 

4.  Separate  examination  of  married  woman  not  required. 

5.  The  certificate  of  acknowledgment  may  be  on  a  separate  sheet  attached 

to  the  instrument. 
Wyoming  : 

1.  May  be  acknowledged  before  consul  general,  consul,  or  vice  consul. 

2.  One  witness  required. 

3.  Private  seal  not  required. 

4.  Separate  examination  of  married  woman  required  in  case  of  alienation 

of  homestead  property. 

5.  Certificate  of  acknowledgment  may  be  written  or  printed  or  attached  to 

the  document. 


Chapter  V.  ♦ 

AUTHENTICATIONS. 

108.  The  laws  of  some  of  the  States  permit  acknowledgments 
to  be  taken  abroad  and  oaths  to  be  administered  on  affidavits  and 
other  documents,  by  officers  other  than  officers  of  the  United  States, 
and  in  some  cases  it  is  required  that  the  signature,  seal,  official 
character,  authority,  et  cetera,  of  such  foreign  officer  be  authenti- 
cated by  the  certificate  of  an  American  diplomatic  or  consular  officer. 

When  application  is  made  to  an  American  consular  officer  for 
such  an  authentication  it  is  suggested  that  he  should  carefully  con- 
sult the  Synopsis  of  the  Laws  in  order  to  ascertain  definitely  the 
exact  requirements  of  the  particular  State  concerned. 

Some  States  do  not  require  such  authentications,  and  others  do 
not  accept  an  authentication  by  an  American  diplomatic  or  con- 
sular officer  but  require  instead  the  authentication  of  the  high  public 
officer  of  the  foreign  State. 

The  requirements  as  to  what  shall  be  included  in  a  consular  cer- 
tificate of  authentication  of  a  foreign  certificate  differ  under  the 
several  State  and  Federal  jurisdictions. 

For  instance,  in  some  States  it  is  required  that  the  official  char- 
acter of  the  foreign  official  shall  be  certified ;  in  others,  the  certificate 
must  show  that  the  foreign  official  was  duly  elected,  appointed,  or 
qualified  and  acting  at  the  time  he  performed  the  notarial  service, 
in  others,  it  is  sufficient  merely  to  certify  that  full  faith  and  credit 
are  due  to  the  foreign  notarial  certificate ;  in  still  others,  it  must  be 
shown  that  the  foreign  official  was  authorized  under  the  laws  of  his 
country  to  certify  acknowledgments,  administer  oaths,  or  take  affi 
davits,  as  the  case  might  be. 

Under  section  4892,  Revised  Statutes,  when  patent  applications  are 
acknowledged  or  sworn  before  foreign  officials,  an  American  diplo- 
matic or  consular  officer  must  attest  the  authority  of  such  foreign 
officer. 

FORMS. 

109.  Specimen  forms  of  authentications  are  here  quoted  for  the 
guidance  of  consular  officers. 

Commonwealth  of  Australia,  State  of  Queensland,  City  of 
Townsville,  Consular  Agency  of  the  United  States  of  America, 
I, ,  Consular  Agent  of  the  United  States  of  America  at 

Townsville,   in   the   State  of   Queensland,   Commonwealth   of  Australia,   duly 
58 


iss: 


A   NOTARIAL   MANUAL   FOR   CONSULAR  OFFICERS.  59 

commissioned  and  qualilied,  do  hereby  certify  that ,  before 

whom  the  annexed  instrument  lias  been  acknowledged,  was  at  the  time  of  sign- 
ing his,  the  annexed  certificate,  a  notary  public  at  Townsville  in  the  State  of 
Queensland,  Commonwealth  of  Australia. 

IN  WITNESS  WHEREOF  I  have  hereunto  set  my  hand  and  affixed  the  seal 

of  the  Consular  Agency  at  Townsville,  aforesaid,  this day  of , 

192__. 


Consular  Agent  of  the  United  States  of  America. 

Republic  of  China,  Province  of  Fukien,  i 

Port  of  Amoy,  Consulate  of  the  United  States  of  America,]  *  * 
I,  Clarence  E.  Gauss,  Consul  of  the  United  States  of  America  at  the  port 
of  Amoy,  in  the  Province  of  Fukien,  Republic  of  China,  duly  commissioned  and 

qualified,  do  hereby  certify  that ,  whose  true  signature 

and  official  seal  are,  respectively,  subscribed  and  affixed  to  the  foregoing  certifi- 
cate, was,  on  the day  of ,  1916,  the  day  of  the  date  thereof. 

His  Britannic  Majesty's  Consul  at  Amoy,  duly  commissioned  and  qualified,  to 
whose  official  acts  faith  and  credit  are  due. 

IN  WITNESS  WHEREOF  I  have  hereunto  set  my  hand  and  the  seal  of  the 
consulate  at  Amoy,  this day  of ,  1916. 


Consul  of  the  United  States  of  America. 

110.  The  consular  officer  is  cautioned  against  making  statements 
in  authentications  which  are  not  within  his  power  or  knowledge  to 
make.  He  can  not  properly  authenticate  the  signatures  or  seals  of 
officers  whose  signatures  and  seals  are  not  well  known  to  him  or 
which  he  may  not  verify  in  the  public  records  of  a  public  office ;  or, 
generally,  of  officers  not  in  his  consular  district.  The  consular 
officer  may  properly  require  that  in  such  cases  the  signature  and  seal 
first  be  authenticated  by  the  proper  official  of  the  foreign  Govern- 
ment, whose  signature  and  seal  are  well  known  to  the  consular 
officer. 

Where  the  State  law  requires  the  consul's  certificate  of  authentica- 
tion to  show  that  the  foreign  officer  whose  certificate  is  authenticated 
was  empowered  to  administer  oaths,  caution  should  be  exercised  to 
verify  the  fact  of  his  being  so  empowered.  The  mere  fact  that  a 
person  is  a  notary  public  does  not  in  itself  always  give  him  power 
to  administer  oaths  for  general  or  special  purposes.  Furthermore, 
the  power  to  administer  oaths  does  not  in  all  jurisdictions  include 
the  power  to  administer  an  affirmation,  though  it  does  in  some. 

In  the  same  way  the  consular  officer  is  cautioned  against  the  in- 
discriminate authentication  of  documents  purporting  to  originate  in 
the  United  States. 

United  States  consuls  are  not  competent  to  authenticate  the  seals  of  local 
officials  of  the  States  of  the  Union,  The  Department  of  State  authenticates  only 
the  State  seals,  and  can  not  authorize  consuls  to  certify  documents  which  it 
can  not  itself  attest.* 

'Moare's  Rights  aiicl  Duties  ot  Consuls,  p.  115. 


60  A  NOTAKIAL   MANUAL  FOK   CONSULAR  OFFICERS. 

Adequate  means  are  available  in  the  United  States  for  the  authen- 
tication of  certificates  of  American  notaries  public  through  the  source 
of  their  appointment,  the  custodian  of  the  State  seal,  and  the  De- 
partment of  State  of  the  United  States. 

AUTHENTICATION    NOT   A    NOTARIAL   ACT. 

111.  Consular  authentication  of  the  official  character  of  a  foreign 
notary  or  other  official  is  not,  strictly  speaking,  a  notarial  act,  and 
can  not,  therefore,  be  required  of  the  consular  officer  if  he  has  good 
reason  for  declining  to  perform  the  service. 

No  law  or  regulation  requires  an  American  consular  officer  to  certify  to  the 
official  character  of  a  foreign  notary  public,  since  the  certificate  as  to  the  official 
character  of  a  foreign  notai*y  is  not  a  notarial  act.^ 

The  service,  however,  is  one  contemplated  both  by  Government 
regulations  and  by  State  statutes,  and  should  not  be  refused  except 
for  cause. 

AUTHENTICATION   OF   TRANSLATIONS. 

112.  Interpreters  are  always  sworn,  and  the  translation  by  a  con- 
sul, not  on  oath,  can  have  no  greater  validity  than  that  of  any  other 
respectable  man." 

Where  a  certified  translation  is  necessary,  the  consular  officer 
would  do  well  to  have  the  translator  make  oath  to  the  correctness  of 
the  translation ;  this  oath  to  be  in  writing  and  subscribed  and  sworn 
to  before  the  consular  officer. 

AUTHENTICATION  OF  LAWS  OF  FOREIGN  STATES. 

113.  Consuls  are  not  intrusted  with  the  power  of  authenticating  the 
laws  of  foreign  nations.^  Where  authenticated  copies  of  foreign  laws 
are  required  they  may  usually  be  had  through  the  official  foreign 
custodian  thereof  (XII,  1). 

AUTHENTICATION  OF  EXTRADITION  PAPERS. 

For  instructions  under  this  heading  the  consular  officer  is  referred 
to  the  United  States  Consular  Regulations,  1896,  paragraphs  423  to 
425  and  to  Form  No.  36 — Consular. 

2  Church  V8.  Hubbard,  1804  U.  S. 


C  PI  AFTER    VI. 

RECORDING  DOCUMENTS. 

114.  Consular  officers  are  permitted  to  accept  for  recording  in  the 
miscellaneous  record  books  at  the  consulates  documents  in  the  nature 
of  deeds,  powers  of  attorney,  leases,  mortgages,  releases,  agreements, 
partnership  agreements,  articles  of  incorporation  of  American  com- 
panies and  institutions,  and  similar  papers.  The  object  of  this  serv- 
ice is  simply  to  afford  to  Americans  and  American  interests  the  means 
of  preserving,  in  official  custody,  records  of  their  business  and  other 
transactions. 

As  a  general  rule,  before  accepting  a  document  for  recording,  the 
consular  officer  will  require  satisfactory  proof,  by  acknowledgment, 
authentication,  or  otherwise,  of  the  genuineness  of  the  document. 

It  is  recommended  that  the  consular  officer  note  in  the  margin  of 
the  miscellaneous  record  book  the  following  data,  in  reference  to  each 
such  document  recorded,  opposite  the  first  sheet  where  recorded  * 

1.  By  whom  presented  for  recording. 

2.  On  whose  behalf  the  service  is  requested. 

3.  Date  and  hour  of  presentation  for  recording. 

4.  How  the  authenticity  of  the  document  has  been  proved. 

5.  The  name  of  the  person  by  whom  recorded  (in  his  proper  signa- 
ture) and  the  name  of  the  consular  officer  with  whom  compared  (in 
his  proper  signature). 

At  the  close  of  the  record  should  be  indorsed,  and  signed  by  the 
consular  officer  who  copies  or  compares  the  record,  a  statement  that 
it  is  a  true  copy  of  the  original. 

Ordinarily,  no  indorsement  is  made  on  the  original  document  to 
show  recording,  other  than  the  miscellaneous  fee  number  and  the 
official  fee  stamps  for  recording,  canceled  with  a  rubber  stamp  show- 
ing the  name  of  the  office  and  date  of  cancellation. 

Should  a  certificate  of  recording  be  desired,  and  the  consul  see  fit 
to  issue  it,  it  might  be  in  the  following  form,  written  on  or  securely 
attached  to  the  document,  the  fee  of  $2  being  charged  therefor  in 
addition  to  the  recording  fee : 

American  Consulate. 

Amoy,  China, ,  192 — . 

The  within  document  was  filed  for  recording  at  this  office  by , 

on  behalf  of ,  on  the day  of ,  192__, 

at o'clock  in  the noon,  and  duly  recorded  on  pages ,  miscel- 
laneous record  book,  volume 

Witness  my  hand  and  the  seal  of  the  Consulate  this day  of , 

192__. 


Consul  of  the  United  States  of  America. 

61 


62  A  NOTABIAL   MANUAL  FOR  CONSULAR  OFFICERS. 

In  connection  with  requests  for  the  issuance  of  such  certificates, 
however,  it  should  be  said  that  the  practice  sometimes  attempted, 
especially  in  extraterritorial  countries,  of  recording  documents  at 
consular  offices  for  the  purpose  of  obtaining  a  consular  certificate 
of  recording,  bearing  the  consular  seal,  the  purpose  and  effect  of 
which  might  be  misunderstood  by  or  misrepresented  by  unscrupu- 
lous persons  to  those  unfamiliar  with  foreign  law  or  consular  pro- 
cedure, is  strongly  to  be  discountenanced. 

115.  The  recording  of  private  documents  is  not  a  notarial  act  nor 
a  service  which  can  be  required  without  question  from  the  consul, 
and  it  is  suggested  that  he  should  exercise  his  official  discretion  to 
prevent  an  abuse  or  improper  use  of  the  privilege  of  recording. 

116.  For  instructions  concerning  the  inspection  of  private  papers 
filed  as  of  record  in  consular  offices,  the  consul  is  referred  to  United 
States  Consular  Regulations,  1896,  paragraph  479. 

At  common  law  no  person  is  entitled  to  inspect  public  records, 
either  personally  or  by  agent,  or  to  make  copies,  abstracts,  or  memo- 
randa therefrom,  unless  he  has  such  an  interest  therein  as  would 
enable  him  to  defend  or  maintain  an  action  for  which  the  record 
sought  can  be  furnished  as  evidence  or  necessary  information,  and 
the  interest  of  the  person  demanding  the  inspection  must  be  direct 
and  tangible. 

Extreme  care  should  be  exercised  by  the  consular  officer  in  respect 
to  requests  for  inspection,  and  it  should  be  the  invariable  rule  that 
application  for  inspection  be  made  in  writing  with  a  full  statement 
of  the  reasons  for  requesting  inspection. 


Chapter  VII. 

CERTIFIED  COPIES. 

117.  For  the  assistance  of  consular  officers  when  they  are  required, 
or  find  it  necessary,  in  either  a  consular  or  notarial  capacity,  to 
issue  certified  copies  of  documents  filed  in  the  consular  office,  recorded 
in  the  consular  records,  or  duly  exhibited  for  inspection  and  the 
making  of  certified  copies,  the  following  forms,  all  of  them  in  use  in 
consular  offices  are  submitted  as  a  guide  in  the  preparation  of  a  form 
adequate  to  the  occasion : 

Republic  of  China,  Province  of  Fukien,  Port  of  Amoy,  1 
Consulate  of  the  United  States  of  America,  j 

I, ,  Consul  of  the  United  States  of  America  in  and  for 

the  consular  district  of  Amoy,   China,   duly   commissioned  and  qualified,   do 
hereby  certify  that  I  have  carefully  compared  with  the  original  record  in  Vol. 

of  the  miscellaneous  record  books  of  this  office,  the  copy  hereto  annexed 

under  the  seal  of  the  Consulate,  namely  (here  describe  briefly),  and  find  the 
same  to  be  a  true  and  faithful  copy  of  the  whole  of  the  said  record. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  official  seal  this 

day  of ,  A.  D.  192 


Consul  of  the  United  States  of  America. 


Consulate  of  the  United  States  of 

America, 

I, ,  of  the  United  States  of  America  at 

, ,  duly  commissioned  and  qualified,  do  hereby  certify  that  the 

annexed  copy  of is  a  true  and  faithful  copy  of  the  original 

filed  in  this  consulate  (or  "this  day  exhibited  to  me"),  the  same  having  been 
carefully  examined  by  me  and  compared  with  the  said  original  and  found  to 
agree  therewith  word  for  word  and  figure  for  figure. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  official  seal  this 

day  of ,  192 


of  the  United  States  of  America. 

The  form  first  cited  is  believed  to  be  preferable.  The  greatest 
care  should  be  exercised  in  making  copies  for  certification  to  see  that 
they  agree  with  the  originals  in  every  particular. 

63 


Chapter  VIII. 
PROTESTING  NEGOTIABLE  INSTRUMENTS. 

118.  In  extraterritorial  countries,  American  consular  officers  are 
sometimes  called  upon  to  perform  notarial  services  in  connection 
with  the  protesting  of  negotiable  instruments  in  which  an  American 
interest  is  involved,  and  as  this  is  an  important  and  exacting  duty- 
it  is  essential  that  they  should  have  some  familiarity  with  the  proper 
procedure. 

A  notarial  officer's  duties  in  regard  to  negotiable  instruments  are 
exceedingly  important,  and  his  responsibility  is  great;  he  must  be 
familiar  with  at  least  the  generally  applicable  principles  of  the  law 
governing  the  presentment,  demand,  protest,  and  notice  of  dishonor 
of  such  instruments. 

Numerous  treatises  on  this  subject  have  been  prepared  by  author- 
ities,  and  it  is  impossible  in  the  space  of  these  few  pages  to  deal 
more  than  briefly  with  the  subject.  The  following  notes,  however, 
may  serve  as  a  general  guide. 

NEGOTIABLE  INSTRUMENT. 

119.  An  instrument  is  called  negotiable  when  the  legal  title  to  it, 
and  to  the  whole  amount  of  money  expressed  upon  its  face,  may  be 
transferred  from  one  to  another  by  endorsement  and  delivery  by 
the  holder,  or  by  delivery  only.^ 

120.  A  promissory  note  is  an  unconditional,  written,  and  delivered 
promise,  signed  by  the  maker,  to  pay  absolutely  and  unconditionally 
to  another  person  named  therein,  or  to  his  order,  or  to  bearer,  a  cer- 
tain sum  of  money,  at  a  specified  time  or  on  demand,  or  at  sight. 

121.  A  bill  of  exchange  is  an  unconditional  written  order  upon  one 
person  by  another  for  the  payment  of  a  certain  sum  of  money,  abso- 
lutely and  at  all  events. 

A  bill  of  exchange  is  often  known  in  commercial  usage  as  a  draft. 

A  foreign  bill  is  one  payable  out  of,  and  an  inland  bill  is  one 
payable  within,  the  State  in  which  it  is  drawn. 

Bills  of  exchange,  especially  foreign  bills,  are  often  drawn  in 
sets  of  two  or  three,  all  being  just  alike,  except  that  they  are  marked, 
respectively,  first,  second,  and  third  of  exchange,  so  that  if  one  is 
lost  or  delayed  another  may  be  used.  The  entire  set  constitutes  but 
one  bill.  If  one  part  be  accepted  it  only  should  be  paid,  and  the 
whole  bill  would  then  be  accepted  and  paid. 


1  Dan.  Neg.  Inst.,  1. 
64 


A   NOTARIAL    MANUAL   FOR   CONSULAR   OFFICERS.  65 

122.  A  check  is  a  draft  or  order  upon  a  bank  or  banking  house 
XDurporting  to  be  drawn  upon  a  deposit  of  funds,  for  the  payment, 
at  all  events,  of  a  certain  sum  of  money  to  a  certain  person  therein 
named,  or  to  him  or  his  order,  or  to  bearer,  and  payable  instantly 
on  demand. 

123.  A  notarial  protest  is  a  declaration  in  writing  made  by  a 
notarial  officer  on  behalf  of  the  holder  of  a  bill  or  note  that  ac- 
ceptance or  payment  has  been  refused.  This  written  declaration 
itself  is  also  properly  called  the  certificate  of  protest,  which,  of  it- 
self, is  only  the  evidence  of  the  fact  of  protest. 

In  its  popular  sense,  protest  means  all  the  steps  or  acts  accom- 
panying the  dishonor  of  a  bill  or  note  necessary  to  charge  the 
indorser. 

Generally  speaking,  commercial  paper  may  be  said  to  be  dis- 
honored when,  upon  due  presentation  to  the  proper  party  either  for 
acceptance  or  payment,  such  acceptance  or  payment  is  refused,  or 
without  the  consent  of  the  drawer  acceptance  is  offered  conditionally 
or  qualifiedly.^ 

NECESSITY  FOR  PROTEST. 

124.  When  a  foreign  bill  of  exchange  is  presented  for  acceptance 
or  payment  and  is  dishonored,  protest  for  nonacceptance  or  non- 
payment is  necessary,  in  order  to  charge  the  drawer  and  indorsers. 
No  other  evidence  will  supply  the  place  of  such  protest. 

In  the  absence  of  statute  or  usage,  a  formal  protest  for  the  pur- 
pose of  holding  parties  secondarily  liable  on  a  promissory  note  is  not 
necessar}^,  but  when  payment  on  an  indorsed  foreign  promissory  note 
is  refused  and  application  is  made  to  the  consular  officer  for  notarial 
protest,  such  service  should  not  be  refused,  although  the  certificate 
of  protest  may  not  be  everywhere  received  as  evidence. 

DISTINCTION    BETWEEN    FOREIGN    AND    INLAND    BILLS. 

125.  A  foreign  bill  of  exchange  is  one  of  which  the  drawer  and 
drawee  are  residents  of  countries  foreign  to  each  other.  An  inland 
bill  is  one  of  which  the  drawer  and  drawee  are  residents  of  the 
same  State  or  country.  The  States  of  the  United  States  are  in 
this  respect  considered  foreign  to  each  other.  This  distinction  is 
important,  because,  according  to  the  law  merchant,  foreign  bills 
must  be  protested  in  order  to  charge  the  drawer,  while  inland  bills 
need  not  be. 

protest;  by  whom  made. 

126.  If  a  bill  or  note  is  to  be  protested  in  case  of  dishonor,  it 
must  be  presented  for  acceptance  or  payment,  as  the  case  may  be^ 

27  Cyc.  1051. 

54733—21 5 


66  A   NOTARIAL   MANUAL   FOR   CONSULAR   OFFICERS. 

and  demand  made  by  the  notarial  officer  himself,  in  behalf  of  the 
holder. 

If  no  notarial  officer  can  be  conveniently  obtained,  protest  may 
usually  be  made  by  any  other  substantial  person  in  the  presence  of 
two  witnesses.^ 

It  is  not  sufficient  that  the  notarial  officer  be  told  of  presentment 
and  demand  by  another;  to  protest  on  such  statement   would  be 
acting  on  mere  hearsay.    He  must  go  in  person  and  again  make  pre 
sentment  and  demand,  so  that  he  can  certify  of  his  own  personal 
knowledge. 

A  clerk  or  other  person  acting  for  the  notarial  officer  is  not  gen- 
erally competent  to  make  the  presentment  and  demand,  and  the 
consular  officer  is  therefore  cautioned  that  he  should  make  the  pre- 
sentment and  demand  in  person. 

TIME  OF   MAKING   PROTEST. 

127.  The  protest  of  a  bill  ordinarily  begins  with  the  noting  of  it. 
In  the  case  of  a  foreign  bill  of  exchange  this  should  be  done  on  the 
day  it  is  dishonored,  and  it  has  been  held  that  neglect  to  note  a 
bill  of  exchange  for  protest  on  that  day  will  only  be  excused  by 
inevitable  accident.* 

Where  grace  is  allowed. — Where  days  of  grace  are  allowed,  it  lias  been  held 
that  in  order  to  hold  the  indorser  the  note  must  be  protested  on  the  last  day 
of  grace. 

Where  due  on  a  holiday  or  Sunday. — A  bill  of  exchange  should  not  be  pro- 
tested on  Sunday  or  a  legal  holiday,  unless  expressly  authorized  by  statute, 
and  the  general  rule  is  that  a  bill  maturing  on  Sunday  or  a  legal  holiday 
should  be  protested  on  the  day  following;  but  in  the  absence  of  statute  the 
doctrine  seems  to  be  well  settled  that  where  days  of  grace  are  allowed,  and 
the  last  day  of  grace  falls  on  Sunday,  then  the  bill  is  payable,  and  in  case  of 
dishonor  should  be  protested  on  the  preceding  Saturday. 

Premature  protest. — Where  a  bill  of  exchange  or  note  is  protested  prior  to 
the  date  of  its  maturity  and  dishonor,  such  protest  can  not  be  regarded  as 
valid  to  fix  the  liability  of  the  indorser,  and  is  nugatory. 

It  has  been  the  experience  of  the  writer  in  China  that  the  banks 
do  not  allow  days  of  grace  in  respect  to  bills  of  exchange  presented 
for  notarial  protest. 

Under  the  District  of  Columbia  Code  days  of  grace  have  been 
abolished;  under  the  Federal  Code  which  was  enacted  for  Alaska, 
grace  was  allowed  except  on  sight  or  demand  bills. 

TIME   OF   PRESENTMENT   BY   NOTARY. 

128.  The  presentment  must  be  made  during  the  usual  hours  of 
business,  which  usually  means  till  the  hours  of  rest  in  the  evening, 

37  Cyc,  10r)5. 
*  1  Cyc,  1050. 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  67 

except  when  presentment  be  made  at  a  bank,  when  it  must  be  made 
during  banking  hours.  If  a  known  custom  or  usage  fixes  the  busi- 
ness hours  in  a  place,  it  there  governs  the  time  of  presentment. 

When  the  paper  is  not  payable  at  a  bank,  the  rule  that  it  must  be 
presented  at  a  reasonable  hour  requires  that  it  shall  be  presented 
during  the  usual  hours  of  business  established  by  custom  or  usage  in 
the  particular  place  and  renders  it  sufficient  if  the  presentment  is  at 
any  time  within  those  hours.  If  the  paper  is  presented  at  the  resi- 
dence of  the  maker  or  acceptor,  it  must  be  presented  at  or  within 
those  hours  when  he  may  be  presumed  to  be  in  a  condition  to  attend 
to  business  and  not  after  the  usual  time  for  retiring  to  rest. 

When  the  bill  or  note  is  payable  at  a  bank,  the  holder  or  notarial 
officer  must  present  it  during  banking  hours,  unless  he  can  obtain 
admission  thereafter  and  find  a  person  authorized  to  answer  or  in 
some  other  way  get  an  answer  from  an  authorized  officer  or  agent,  in 
which  case  a  presentment  after  banking  hours  will  be  sufficient. 

THE  PLACE  OF  PRESENTMENT. 

129.  If  a  particular  place  for  payment  is  specified  in  a  bill  or  note, 
it  is  sufficient  as  against  all  parties  to  the  instrument  to  make  pre- 
sentment there,  although  the  place  so  designated  is  neither  the 
residence  or  place  of  business  of  the  acceptor  or  maker,  and  although 
he  may  be  known  to  be  elsewhere  at  the  time  of  presentment.  Such 
presentment  will  be  sufficient,  although  there  is  no  one  at  all  at  the 
place  named  and  it  is  not  the  maker's  or  acceptor's  residence. 

The  rule  established  by  the  weight  of  authority  is  that  where  no 
particular  place  of  payment  is  designated,  it  is  necessary,  in  order 
to  charge  the  drawer  or  indorser,  to  present  the  same  at  his  resi- 
dence or  usual  place  of  business,  if  he  has  one,  and  it  is  known 
or  can  be  ascertained  by  the  exercise  of  reasonable  diligence,  and 
that  either  is  sufficient. 

When  the  present  place  of  residence  or  business  can  not  be  found, 
presentment  at  the  last  known  place  of  business  or  residence  is, 
it  seems,  sufficient. 

MANNER  or  PRESENTMENT. 

130.  The  notarial  officer  must  call  upon  the  drawee  or  his  agent, 
exhibit  the  bill  to  him,  and  ask  whether  he  will  accept  or  pay,  as  the 
case  may  be. 

TO    WHOM    PRESENTMENT    IS    MADE. 

131.  Presentment  is  sufficiently  made,  either  to  the  drawee  or  ac- 
ceptor of  a  bill  or  to  the  maker  of  a  note,  or  to  his  agent  in  his  ab- 
sence, at  the  legally  required  place,  and  it  must  be  so  made  in  order  to 


68  A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

charge  the  drawer  and  indorsers.  Presentment  may,  in  the  absence 
of  the  acceptor  or  maker,  be  made  to  anyone  on  the  premises,  in 
charge  thereof,  the  paper  being  payable  there. 

If  several  persons  who  are  not  partners  have  joined  as  makers  or 
acceptors  of  a  note  or  bill,  presentment  must  be  made  to  all. 

If  a  note  is  made  by  a  firm,  or  if  a  bill  is  drawn  upon  or  accepted 
by  a  firm,  presentment  may  be  made  to  any  partner  and  need  not  be 
made  to  all. 

If  the  acceptor  or  maker  dies  before  maturity  of  the  paper,  pre- 
sentment should  be  made  to  his  personal  representative,  if  appointed, 
and  if  he  can  be  found  or  his  address  is  known,  even  though  the 
indorser  himself  be  an  executor  or  administrator.  If  no  personal 
representative  has  been  appointed,  payment  of  a  note  should  be 
demanded  at  the  last  residence  of  the  deceased  maker. 

It  has  been  found  in  practice  that  bills  of  exchange  are  usually 
sent  by  the  banks  to  the  consular  officer  very  near  the  close  of  banking 
or  business  hours  in  the  afternoon.  The  best  advice  that  can  be 
given  to  the  consular  officer  is  that  he  take  immediate  action  as  soon 
as  the  bill  reaches  him  so  that  he  may  make  the  presentment  during 
the  business  hours  of  the  day. 

It  has  also  been  noticed  that  there  is  at  times  slackness  in  the  pres- 
entation of  bills  to  consular  officers  for  protest.  It  would  be  well  for 
the  consular  officer  to  note  immediately  upon  receipt  by  him  of  a  bill 
of  exchange  for  protest  the  hour  of  the  receipt  of  the  bill,  and  where 
the  bill  is  presented  for  protest  after  the  date  of  its  maturity  he 
should  not  fail  to  make  note  of  that  fact,  and  would  do  well  to  call 
the  bank's  attention  thereto. 

Every  effort  should  be  made  to  see  that  no  complaint  of  neglect 
or  lack  of  due  diligence  can  be  lodged  against  the  consular  officer 
on  account  of  his  duty  in  reference  to  the  protesting  of  negotiable 
instruments. 

NOTING  THE  DISHONOR. 

132.  It  is  the  custom  for  the  notarial  officer,  after  presentment  of  a 
bill  or  note  for  acceptance  or  payment,  as  the  case  may  be  (and  the 
consular  officer  should  have  it  clear  in  making  presentment  and  protest 
whether  it  be  for  acceptance  or  for  payment),  to  note  on  the  bill  or 
note  a  minute  to  the  effect  that  it  was  presented  for  payment  or 
acceptance  and  refused,  in  something  of  the  following  form: 

Shanghai,  China, 
1917, 

Acceptance  (or  "payment,"  as  the  case  might  be)  demanded  and  refused. 

Vice  Consul  of  the  United  States  of  America. 


I  ss: 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  69 

This  note  or  minute  of  protest  may  later  be  extended  into  the! 
certificate  of  protest.  This  is  sometimes  called  the  "  initial  protest," 
and  it  may  then  be  extended  into  the  regular  protest,  or,  in  other 
words,  the  protest  may  be  written  out  in  full  at  any  convenient  time 
afterward. 

The  following  is  a  form  of  certificate  of  protest  which  it  is  believed 
is  sufficient  for  all  requirements : 

1.  First  make  a  correct  copy  of  the  protested  instrument  and  of 
its  indorsements ;  and  then  below  make  this  certificate  of  protest : 

Republic  of  China,  Province  of  Kiangsu,  City  of  Slianghai, 

Consulate  General  of  the  United  States  of  America. 

Be  it  known  that  on  this day  of ,  in  the  year  one  thousand 

nine  hundred  and ,  I, ,  Vice  Consul  of  the  United 

States  of  America  at  Shanghai,  China,  duly  commissioned  and  qualified,  at 

the  request  of ,  went  with  the  original ,  which  is 

hereunto  attached,  to  the  office  of ,  and  demanded 

thereon,  which  was  refused  for  the  following  assigned  reasons : 

Whereupon  I,  the  said  Vice  Consul,  at  the  request  aforesaid,  have  protested, 

and  do  hereby  solemnly  protest,  as  well  against  the  drawer  of  the  said 

,  as  against  all  persons  whom  it  doth  or  may  concern,  for  exchange, 

reexchange,  and  all  costs,  charges,  damages,  and  interest  suffered  or  to  be 
suffered,  for  the  want  of  payment  (or  "acceptance")  thereof;  and  I  certify 
that  I  have  no  interest  in  the  above-protested  instrument. 

And  I,  the  said  Vice  Consul,  do  hereby  further  certify  that  on  the day 

of ,  due  notice  of  the  foregoing  protest  was  put  in  the 

post  office  at ,  as  follows: 

Notice  for: 


Notice  for: 
Notice  for: 


In  testimony  whereof  I   have  hereunto   set  my  hand  and  official  seal   at 
Shanghai,  China,  the  day  and  date  first  above  written. 


Vice  Consul  of  the  United  States  of  America. 

NOTICE  OF  DISHONOR  AND  PROTEST. 

133.  When  acceptance  or  payment  of  a  bill  or  note  duly  presented 
therefor  is  refused,  notice  of  such  dishonor  and  protest  must  be  given 
at  once  to  the  drawer  and  to  the  indorsers. 

It  is  not,  strictly  speaking,  a  part  of  the  duty  of  the  notarial  offi- 
cer, as  such,  to  give  this  notice,  even  if  he  presented  and  protested 
the  instrument ;  but  he  may  do  so,  and  it  is,  indeed,  generally  the  cus- 
tom to  have  him  do  so ;  and  the  custom  in  the  extraterritorial  juris- 
diction in  China  seems  to  follow  this  rule.  When  the  notarial  officer 
gives  the  notice  of  dishonor,  it  is  considered  that  he  is  employed  for 
that  purpose  by  the  holder. 


70  A  l^rOTAEIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

TIME  OF  GIVING  NOTICE. 

134.  Notice  may  be  given  at  any  time  after  dishonor,  without  wait- 
ing for  the  close  of  business  hours.  When  sent  by  mail,  it  is  the 
general  rule  that  the  notice  of  dishonor  and  protest  must  be  sent 
not  later  than  by  the  first  mail  which  leaves  on  the  day  after  dis- 
honor, provided  the  mail  does  not  close  before  the  early  and  con- 
venient business  hours  of  that  day. 

TO  WHOM  NOTICE  MUST  BE  GIVEN. 

135.  The  drawer  of  a  bill  payable  to  a  third  party,  and  each  in- 
dorser  on  a  bill  or  note,  is  entitled  to  notice,  including  indorsers  for 
value,  for  accommodation,  and  banks  and  other  agents  who  indorse 
merely  for  purposes  of  collection. 

The  drawee  or  acceptor  of  a  bill  and  the  maker  of  a  note,  being 
the  parties  primarily  liable,  are  not  entitled  to  notice. 

The  notice  should  be  directed  to  the  party  at  his  place  of  busi- 
ness or  place  of  residence,  if  either  is  known  or  upon  diligent  in- 
quiry can  be  ascertained. 

FORM   OF   NOTICE  OF   DISHONOR   AND   PROTEST. 

136.  The  following  form  is  generally  acceptable  for  the  purpose : 

American  Consulate  General, 

Shanghai,  China, ,  19 — . 

To 


Please  take  notice  that  a  bill  of  exchange  (or  "  promissory  note  ")  for  $ 

,  dated  at ,  on  the day  of ,  192__, 

drawn  by ,  of , , 

,  in  favor  of ,  on , 

, ,  accepted  by , 

of ,  indorsed  by ,  of , 

and ,  of  ^_,  was  this  day  presented  for  pay- 
ment (or  "acceptance")  and  payment  (or  "acceptance")  was  refused,  and 
therefore  was  this  day  protested  by  the  undersigned  for  nonpayment  (or  "  non- 
acceptance  "). 

The  holder  thereof  looks  to  you  for  payment  thereof,  together  with  interest, 

damages,   costs,   etc.,  you  being  (indorser,   drawer,   etc.), 

thereof. 


Vice  Consul  of  the  United  States  of  America. 

It  should  be  noted  that  the  addresses  as  well  as  the  names  of  the 
parties  are,  w^here  possible,  given. 

CONSULAR  RECORDS. 

137.  Careful  record  of  the  protest  should  be  made  in  the  official 
record  of  fees;  the  data  given  being  such  as  to  fully  identify  the 
instrument  protested,  etc. 


A  NOTABIAL   MANUAL  FOR   CONSULAR  OFFICERS.  71 

CONSULAR  FEES. 

138.  The  fee  of  $2  prescribed  by  item  33  of  the  tariff  of  consular 
fees  is  charged  for  the  certificate  of  protest ;  fee  42  for  a  service  out- 
side of  the  office  is  also  applicable;  and  the  consular  charges  for 
expenses  in  making  the  protest — the  actual  outlay  for  street  car, 
ricksha,  boat,  or  other  necessary  conveyance — should  be  noted  in  the 
margin  of  the  fee  book  opposite  the  entry  of  protest  and,  of  course, 
collected  from  the  person  for  whom  the  service  is  performed. 

REFERENCES. 

139.  For  more  detailed  information  on  the  subject  of  protesting 
negotiable  instruments,  consular  officers  are  referred  to  such  of  the 
following  as  may  be  available  in  their  law  libraries,  most  consulates 
in  extraterritorial  countries  being  equipped  with  such  libraries : 

Cyclopedia  of  Law  and  Procedure. 
Norton  on  Bills  and  Notes  (Hornbook  series). 
John's  American  Notaries. 
Giauque's  Manual  for  Notaries. 


Chapter  IX. 

MARINE   PROTESTS   AND    SERVICES   TO   VESSELS    AND 

SEAMEN. 

140.  In  a  discussion  of  the  notarial  duties  of  consular  officers,  ref- 
erence should  also  be  made  to  the  services,  many  largely  of  a  purely 
notarial  character,  rendered  by  American  consular  officers  to  vessels 
and  seamen  of  the  merchant  marine  of  the  United  States. 

Amongst  the  services  largely  of  a  notarial  character  may  be  men- 
tioned the  attesting  of  marine  protests,  acknowledgments  on  bot- 
tomry bonds,  oaths  of  new  masters,  attesting  agreements  for  in- 
creased wages,  authenticating  calls,  warrants  and  reports  of  survey, 
and  authenticating  copies  of  inventories  and  letters. 

Services  to  vessels  and  seamen  of  the  merchant  marine  are  not  per- 
formed under  State  statutes,  but  under  the  Federal  Statutes,  and  the 
authority  for  these  services  will  be  found  principally  in  the  Consular 
Regulations  and  the  navigation  laws  of  the  United  States. 

141.  Under  section  1707,  Revised  Statutes,  and  paragraph  186, 
Consular  Regulations,  1896,  consular  officers  have  the  right,  in  the 
ports  or  places  to  which  they  are  severally  appointed,  of  receiving 
protests  or  declarations  which  captains,  masters,  crews,  passengers, 
or  merchants,  who  are  citizens  of  the  United  States,  may  respectively 
choose  to  make ;  and  also  such  as  any  foreigner  may  choose  to  make 
before  them  relative  to  the  personal  interest  of  any  citizen  of  the 
United  States.  Copies  of  such  acts,  duly  authenticated  by  consuls  or 
vice  consuls,  under  the  seals  of  their  consulates,  respectively,  shall  be 
received  in  evidence  equally  with  their  originals  in  the  courts  of  the 
United  States. 

The  nature  of  these  documents  will  depend  in  each  case  upon  the 
particular  facts  to  be  protested  against. 

A  variety  of  forms  to  aid  the  consular  officer  in  his  business  inter- 
course with  masters  and  seamen  is  given  in  the  appendix  to  the  Con- 
sular Regulations,  1896.  These  regulations  (par.  335),  however, 
note  that  many  of  these  forms  are  given  to  the  consular  officer  for 
his  general  information  and  not  as  absolute  guides  in  all  cases,  and 
the  Department  of  State  assumes  no  responsibility  for  their  correct- 
ness in  any  particular  case  in  which  they  may  be  used. 

MARINE  PROTESTS. 

142.  A  marine  protest,  also  called  a  maritime  protest,  or  ship  pro- 
test, is  a  writing,  attested  by  a  notarial  officer  or  consul,  made  and 

72 


A   NOTAEIAL   MA:N^UAL  FOR   CONSULAR  OFFICERS.  73 

verified  by  the  master  of  a  vessel,  and,  at  times,  by  one  or  more  of  the 
mates  and  members  of  the  crew,  stating  the  severity  of  a  voyage  or 
some  extraordinary  accident  or  injury  by  which  a  ship  has  suffered, 
and  showing  that  it  was  not  owing  to  the  neglect  or  misconduct  of 
the  master. 

This  formality  is  known  as  entering  a  note  of  protest,  or  simply 
noting  a  protest,  and  is  observed  either  at  a  port  of  discharge  or  at 
a  jDort  of  refuge  or  distress  when,  owing  to  exceptionally  bad 
weather  or  some  accident  at  sea,  damage  has  been  caused  to  ship  or 
cargo. 

Some  masters  make  it  a  rule  to  enter  a  note  of  protest,  although  no 
damage  is  at  the  time  known  to  exist.  By  noting  a  protest  they 
juay  afterwards  relieve  their  employers  of  liability  should  the  cargo 
be  found  damaged  on  delivery,  for  unless  there  be  a  note  of  protest, 
there  can  not  be  a  regular,  or  as  it  is  generally  termed,  extended 
protest. 

The  extended  protest,  or  protest  in  full,  may  be  made  in  the  first 
instance,  or  simply  a  note  or  entry  of  protest  which  may,  when  and  if 
occasion  demands,  be  extended  before  the  same  or  some  other  notarial 
officer. 

The  primary  object  of  a  ship  protest  is  to  found  a  claim  against 
the  underwriters  and  relieve  the  owners  or  employers  of  responsi- 
bility. Protests,  however,  serve  other  purposes.  The  protest  is 
nearly  always  given  credence  by  underwriters,  merchants,  and  others 
in  adjusting  claims,  because  it  is  a  declaration  or  narrative  of  the 
particulars  of  the  voyage,  of  the  storms  or  bad  weather  or  accident 
met  with  by  the  ship,  and  of  the  course  of  conduct  which  the  master 
took  in  the  emergency,  made  immediately  after  the  happening  of  the 
events  detailed  in  it,  when  the  facts  are  fresh  in  mind. 

TIME  FOR   MAKING  PROTEST. 

143.  To  serve  its  purpose  the  original  note  of  protest  should  be 
made  as  soon  as  possible  after  the  arrival  of  the  ship  in  port,  and 
if  made  later  than  24  hours  after  the  arrival,  it  is  recommended  that 
a  brief  statement  of  the  cause  of  the  delay  in  making  it  should  be 
noted.  This  is,  of  course,  also  true  of  a  full  or  extended  protest 
itself,  when  made  in  the  first  instance  without  the  formality  of  first 
noting  a  protest  and  later  extending  it. 

NOTING  THE  PROTEST. 

144.  The  entry  or  note  of  protest  is  in  substance  only  a  notice  of 
the  master's  intention  to  protest,  should  the  extended  protest  after- 
wards become  necessary,  although,  as  previously  stated,  the  full  pro- 
test mav  be  entered  in  the  first  instance. 


74  A   NOTARIAL   MANUAL   FOR   CONSULAR   OFFICERS. 

A  form  for  an  original  note  of  protest  is  given  in  the  appendix 
to  the  Consiihir  Regulations  (Form  No.  37),  and  record  books  for 
such  protests  are  supplied  by  the  Department  of  State  to  all  seaport 
consular  offices.  The  original  of  the  note  of  protest  is  made  in  the 
record  book,  certified  by  the  master  and  attested  by  the  consul. 
Copies  are  usually  issued  to  the  master  on  his  request. 

THE  EXTENDED  PROTEST. 

145.  A  form  for  this  more  full  or  extended  protest  will  also  be 
found  in  the  appendix  to  the  Consular  Regulations  (Form  No.  38) 
and  record  books  for  such  extended  protests  are  also  supplied  to  all 
seaport  consular  offices. 

AVhile  the  original  note  of  protest  is  usually  made  by  the  master 
alone,  the  extended  protest  is  signed  not  only  by  the  master  but 
usually  by  one  or  more  of  the  officers  and  creAV  of  the  ship. 

The  protest  consists  of  two  main  parts : 

First.  A  detailed  statement  in  chronological  order  of  the  remark- 
able events  of  the  voyage,  including  an  account  of  all  the  maritime 
perils  on  which  the  master  intends  to  rely.  If  an  accident  has  hap- 
pened and  loss  or  damage  has  been  sustained,  particulars  of  the 
means  employed  by  the  creAv  to  avoid  the  accident  and  minimize 
such  damage  or  loss  are  usually  given.  As  a  protest  may  be  used 
in  evidence  against  a  master,  the  statement  of  fact  should  agree  in 
all  material  particulars  with  the  entries  in  the  ship's  log,  which  is 
almost  invariably  submitted  at  the  time  of  preparing  the  protest. 

Second.  The  second  part  is  the  part  in  which  the  appearers,  as 
they  are  called,  or  the  notarial  officer,  or  both,  protest  against  the 
accidents  and  causes  of  the  injury  and  against  all  loss  or  damage 
occasioned  thereby. 

Sometimes  the  note  of  protest  may  be  made  before  one  consular  or 
notarial  officer  and  extended  before  another.  In  such  case  it  is 
usual  to  add  in  the  extended  protest  words  to  the  following  effect : 

And  the  said  A.  B.,  master,  further  declares  that  on   the   day   of 

,  the  day  of  the  arrival  of  the  ship  at  the  port  of ,  he 

appeared  at  the  office  of ,  Consul  of  the  United  States  of 

America  at  said  port,  and  duly  entered  his  protest,  and  now  extends  the  same. 

Besides  ship  protests,  strictly  so  called,  there  are  occasionally 
protests  made  before  consular  officers  relating  to  other  matters,, 
such  as  protests  by  a  master  against  the  charterers  of  a  ship,  against 
the  consignee  of  goods  for  nonpayment  of  demurrage,  for  not  load- 
ing according  to  contract,  or  for  neglect  or  delay  in  providing  a 
cargo,  and  protests  by  a  charterer,  shipper,  or  consignee  of  goods 
against  the  master  for  refusal  to  sign  bills  of  lading  in  the  customary 
form,  for  not  proceeding  to  sea  with  despatch,  for  the  insufficiency 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  75 

or  unseaworthiness  of  the  vessel,  and  for  the  misconduct,  drunken- 
ness, or  other  irregularities  on  the  part  of  the  master  or  crew. 

The  forms  in  such  cases  must  be  dictated  by  the  peculiar  circum- 
stances of  each  case. 

FEES. 

146.  By  law  no  fees  named  in  the  tariff  of  consular  fees  pre- 
scribed by  the  President  can  be  collected  by  consular  officers  from 
regularly  documented  American  vessels  and  seamen  for  official 
services  to  them.  Consular  agents,  however,  who  are  compensated 
by  fees,  must  furnish  the  master  of  such  vessel  with  an  itemized 
statement  of  such  services  performed  on  account  of  the  vessel,  with 
the  fee  prescribed  for  each  service,  as  designated  in  the  tariff  of 
consular  fees.  This  statement  is  made  in  duplicate,  one  copy  being 
retained  by  the  master  and  the  other,  upon  being  certified  by  the 
master,  returned  to  the  consular  agent  and  attached  by  him  to  his 
account  claiming  compensation  from  the  Treasury  for  his  services  to 
vessels  and  seamen. 


INDEX. 


A. 

Page. 

Abuse  of  privilege  of  recording  private  documents G2 

AcknoM'ledgments : 

Acknowledgment  of  execution 43 

Acknowledgment  and  attestation   distinguished 36 

By  attorneys 45, 47,  48 

Certificates  of,  form  for . 40 

Corporations 47 

Community    property 44,  45 

Curtesy . 44 

Date 41 

Definition 36 

Digest  of  State  laws 38,49-57 

Disqualification  by  interest 39 

Erasures,  changes,  and  interlineations 47 

Explanation  of  document . 43 

Forms  of,  drawn  by  attorneys .      48 

For  use  in  the  United  States 36 

Homestead 44 

Identity  of  parties 42 

Introductory  clauses  in 41 

Law   of 37 

Married  women 43-44 

Names  of  parties 42 

Personal    appearance 41-42 

Position  of  certificate  on  document 46 

Proof  by  subscribing  witnesses 48 

Synopsis  of  the  laws 38 

Testimonium,  signature,  and  seal 45 

Venue 40 

What  documents  acknowledged 36 

Where  law  is  not  definite 38 

Who  may  take 37 

Act  of  1906  (sec.  7) 7 

Addressing  depositions 32 

Afladavits : 

Affiant's  signature 20 

Allegations,   positive 20 

Allegations  on  information  and  belief 20 

By  agent,  partner,  or  corporation 19 

Component  parts  of 18 

Definition   of 17 

Distinguished   from   depositions 17 

Erasures  in 21 

77 


78  A  NOTAKIAL   MAi^UAL  FOR   CONSULAR  OFFICERS. 

Affidavits — Continued.  Page 

Fee    stamps 21 

Form   of . 17 

Introductory    statement 19 

Interlineations 21 

Jurat 20 

Oath  or  affirmation ^ 21 

Signature  and  seal  of  officer 21 

Titles  in IS 

Under  State  laws 17 

Venues  in IS 

Who  may  attest 17 

Affirmations : 

In    affidavits 21 

In  depositions 25 

Agent : 

Affidavits  by 19 

Acknowledgments 45,  47 

American.     {See  United  States  of  America.) 

American  notaries,  authentication  of  seals  of 59 

Attestations 36,  48 

Attorneys : 

p]xecution  by,  for  married  women 45 

Forms  drawn  by 48 

Acknowledgments  by  attorneys  in  fact 47 

Presence  at  taking  of  depositions . 29 

Rule  of  privilege  concerning 28 

Authentications : 

Forms  of 58 

Marine  papers ; 72 

Not  a  notarial  act 60 

Of  seals  of  American  notaries 5".) 

Of  extradition  papers 60 

Of  foreign  laws 60 

Of  translations 60 

Of  marine  protests 72 

Statements  in 59 

When  required 58 

Authority,  notarial : 

Under  Federal  law 6 

Under  State  laws 6 

^  When  d(mbtful  or  absent 6,7,17,37 

B. 

I5ills  of  exchange = 64 

Blind   persons 22 

C. 

Captions  for  depositions 24 

Certificates  of  acknowledgment.      {See  Acknowledgments.) 

Certifying  copies,  forms  for 03 

Changes.     {See  Corrections.) 

Check 65 


A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS.  79 

Page. 

Chinese,  oaths  of 25 

•Commissions  of  consular  officers , 41 

Commissions  to  take  testimony.      (See  Depositions.) 

Community   property 45 

Consular    districts 8 

Consular  officer: 

Affidavits  before.     (See  Affidavits.) 

As  notary  public i G,  17 

Defined 7 

Who  may  take  acknowledgments ^  37 

Consular  Regulations,  1896: 

Paragraphs    423-425 60 

Paragraph   479 62 

Paragraph    482 8 

Paragraph    483 5 

Paragraph    486 l  6,  9 

Copies.     (See  Certified  copies.) 

Corporations : 

Affidavits   by 19 

Acknowledgments    by 47 

Corrections 21,  28,  47 

Counsel.     (See  Attorneys.) 

Criminal  law : 

Notaries  unknown  to 5 

Depositions  under 23 

Criminating    answers 28 

Curtesy 44 

D. 

Deeds.     (^S'ee  Acknowledgments,  and  proof  by  subscribing  witnesses.) 

Definitions : 

Acknowledgments 36 

Affidavits 17 

Attestations 36 

Community  property 45 

Consular    officers 7 

Curtesy 44 

Depositions 23 

Dower 44 

Homestead 44 

Marine  protests 72 

Notary  public 5 

Degrading  answers 29 

Depositions : 

Addressing  and  indorsing 32 

Attendance  of  witnesses 32 

Caption 24 

Changes  and  corrections 28 

Criminating  answers 28 

Definition 23 

Disciualification  of  commissioner 24 

Enveloping 81 


80  A   NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

Depositions — Continued.  Page 

Exhibits 21V 

Explanations,  and  refresliing  memory 27 

Fastening  and  sealing- 81 

Fees   for 35 

Final   certificates 30 

Interpreting ^ 2i 

Limitations  on  consul's  duties  in 33 

Letters  rogatory : 34 

Noting  objections 21) 

Objections  by  authorities  to  taking 34 

Personal  privilege 2S 

Presence  of  parties  or  counsel 2Q 

Reducing  to  writing 2(> 

Signing 30 

Swearing  witnesses 25 

Use  of  stenographers 26 

Under  criminal  law 23 

Who  may  execute  commissions  to  take 23 

Digest  of  State  laws 38,  49-57 

Diplomatic  officers,  notarial  authority  of . f5 

Disabling   interest 8 

Disqualification  of  officer 6,  24,  39 

Dower 44 

Duty  to  clients S 

E. 

Enveloping  depositions ^ 31 

Erasures 21,  28,  47 

Exhibits 29 

Explanations  in  interrogatories 27 

As  to  notarial  documents 43 

Extradition  papers,  authentication  of 60 

F. 

Fastening  papers 16,  31,  46 

Federal  laws  governing  notarial  services 6, 17 

Fee  stamps 11,  21 

Fees  for  notarial  services 12,  35,  71 

Fees  for  vessels  and  seamen 75 

Foreign  bills  of  exchange 65 

Foreign  laws,  authentication  of 6<.) 

Fore'gn  laws.     (S'ee  also  Letters  rogatory.) 

Foreigners,  services  for 14 

Forgery  of  consular  signature  or  seal 11 

Forms : 

Acknowledgment,  certificate  of 40 

Acknowledgment  by  attorney  in  fact 47 

Acknowledgment  by  corporation l 48 

Acknowledgment  by  married  woman 44 

Authentication  of  signature,  seal,  etc.,  of  foreign  notary  or  other 

officer 58-59 

Caption  for  depositions 24 


A   NOTARIAL   MANUAL   TOR   CONSULAR   OFFICERS.  81 

Forn\s — Coiitinned.  Page. 

Certificate  for  depositions 30 

Certificate  of  recording 61 

Certifying  copies 63 

Corrections  and  interlineations 47 

Identification 43 

Interpreters  in  depositions 25 

Marksmen's  signatures 22,  30 

Notice  of  dishonor  and  protest 70 

Proof  by  subscribing  witness 49 

Protest  of  bill  or  note 69 

G. 

Grace,  days  of 66 

Gratuitous  services 12-13 

H. 

Holidays  and   Sundays: 

Notarial    services    on 15 

Negotiable  instruments  due  on 66 

Homestead 44 

Husband  and  wife : 

Under  rule  of  privilege-l 28 

See  also  Married  women. 

I. 

Identification 42 

Indorsing  depositions 32 

Information  and  belief,  allegations  on 20 

Inland  bills 65 

Instructions  under  commissions  to  take  testimony 24 

Interest,  disqualifying  or  disablii^ 8 

Interlineations 21,  28,  47 

Interpreting-- 24 

See  also,  Translations. 
Interrogatories.      {See  Depositions.) 

J. 

Jurat 20 

Jurors,  under  rule  of  privilege 29 

L. 

Law  merchant 5,  7,  37 

Letters  rogatory 34 

Liability  of  notary 8 

Limits  of  notarial  authority 8 

M. 

Marine  protests 72 

Marksmen ' 22,  30 

Married  women : 

Community  property 45 

Curtesy 44 

54733—21 6 


82  A  NOTARIAL   MANUAL  FOR   CONSULAR  OFFICERS. 

Married  women — Continueci.  Page, 

Disabilities  of 43,  44 

Dower 44 

Homestead  property 44 

Separate  examination 44 

Ministers  and  priests,  under  rule  of  privilege 28 

N. 
Negotiable  instruments : 

Definitions <>4 

Protesting  of — 

By   whom 05 

Certificate  of  protest 69 

Consular  record  of TO 

Fees  for 71 

Foreign  and  inland  bills 65 

Manner   of 67 

Necessity  for 65 

Noting  the  dishonor 68 

Notice  of  dishonor  and  protest . 69,  70 

Place   of 67 

Time  of 66 

To   whom  presented 1 67 

Notary   public : 

Definition 5 

Duty  to  clients 8 

Functions   of 5 

Not  known  to  criminal  law 5 

Responsibility   of 8 

Notarial  record.     (/See  Record  of  notarial  services.) 
Notarial  services : 

Authentications   are    not „ 60 

For    foreigners 14 

Required  to  be  performed 7 

Recording  documents,  not 62 

Solicitor's  opinion  on  what  constitute 14,  83 

Numbering  notarial  acts 14,  21 

O. 

Oaths,    affidavits 21 

Chinese  witnesses 25 

Interpreters 59 

Stenographers r 27 

Translators 60 

Witnesses .  r 25 

Obligation  to  perform  notarial  services 7 

Objections : 

Noting,  in  depositions 29 

When  made  by  local  authorities 34 

Officers.     (/Sfee  Consular  officers.) 

P. 

Partners,  affidavits  by 1^ 

Patent  applications,  fastening  of 16 

Personal  appearance . 41 


A   NOTARIAL   MANUAL   FOR   CONSULAR  OFFICERS.  83 

Pag*. 

Personal  privilege 28 

Physicians  and  surgeons,  personal  privilege 28 

Position  of  certificates  on  documents 16,46 

Positive  allegations 20 

Presence  of  parties  under  depositions 29 

Priests.     (See  Ministers.) 

Promissory  note 64 

Proof  by  subscribing  witness 48 

Protesting  negotiable  instruments.     (See  Negotiable  instruments.) 

Public  records,  inspection  of 62 

R. 

Recording  documents: 

Abuse  of  privilege 62 

Inspection  of  public  records 62 

Procedure  in 61 

Record  of  notarial  services 14,17 

Refreshing  memory 27 

Revised  Statutes  of  the  United  States: 

Section  864 27 

Section  1750 6,  7,  10,  11 

Rogatory.      (See  Letters  rogatory.) 

B. 
Seals : 

Official  consular 10 

Official,  forgery  of 11 

Official,  on  acknowledgments 45 

Official,  on  affidavits 21 

Official,  on  depositions 19 

Personal 46 

Secretary  of  legation 6,7 

Services  outside  of  office 13, 14, 33 

Shipping  and  seamen 72 

Signatures : 

Acknowledgments 42,  45 

Affidavits 20,  49 

Depositions 30 

Forgery  of  official 11 

Marksmen.      (See  Marksmen.) 

South  Carolina,  attestations  for 37 

State  laws: 

Acknowledgments    under 36 

Affidavits  under 17 

Digest  of 38,  49-57 

Married   women 43 

Notarial  authority  under 6 

Synopsis  of 38 

Stenographers 13,26 

Sundays  and  holidays: 

Negotiable  instruments  due  on 66 

Notarial  services  on 15 

Surgeons.      (See  Physicians.) 

Synopsis  of  the  laws 38 


84  A   NOTARIAL   MANUAL   FOR   CONSULAR   OFFICERS. 

T. 

Testimony.      (See  Depositions.)  Page. 

Testimonium    clauses 45 

Titles   for   affidavits 18 

Title  of  officers  for  notarial  services 10,45 

Translations,  authentication  of —  60' 

Treaty    provisions 15, 34 

U. 

United  States  of  America  ;  use  of  in  official  titles  in  notarial  work 11 

V. 
Venue : 

In  acknowledgments 40' 

In  affidavits 18 

W. 

Wife.     (See  Husband  and  wife,  and  Married  women.) 

Witnesses : 

Attendance    of 32' 

Attesting,  on  acknowledgments 45,  4S 

Identifying 42 


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